Executive Order – ACLU of Washington Travel Ban Litigation

Doe v. Trump

Case Overview

On January 27, 2017, President Trump issued an Executive Order prohibiting entry or re-entry for at least 90 days for all persons of seven predominantly Muslim nations and barring indefinitely the entry of refugees from those countries. Relying on the authority of the Order, the Department of Homeland Security’s Customs and Border Patrol stopped visa holders in airports across the country and the State Department summarily revoked all valid non-immigrant and immigrant visas of nationals of the seven countries.  Several of these refugees were heading to their new homes in Washington State when the Order went into effect, and countless visa holders studying and working in Washington were left uncertain as to their ability to travel outside the country and safely return.

In response, on February 7, 2017, the ACLU of Washington, working with Keller Rohrback cooperating ACLU attorneys, filed a class action lawsuit against President Donald J. Trump, Secretary of State Rex Tillerson, and the Departments of Homeland Security and Customs and Border Patrol for violations of the First and Fifth Amendments to the United States Constitution and federal law.  The suit seeks relief for those with valid student and work visas, including graduate students whose scientific research and career plans have been disrupted by the Executive Order, and the Episcopal Diocese of Olympia, whose efforts to fulfill its religious mission of serving refugees have been severely harmed by the ban.

Case Updates

July 27, 2018 –  The Court denied Defendants’ motion to dismiss and granted Plaintiffs’ request for limited discovery regarding Defendants’ efforts to implement the preliminary injunction and their efforts to restore the status quo following its imposition. Defendants argued that the Government is presumed to have properly discharged its official duties and that they had provided sufficient evidence of compliance with the Court’s preliminary injunction order. However, the Court found that Plaintiffs had demonstrated a bona fide factual dispute concerning the existence and effectiveness of Defendants’ steps to discontinue the Agency Memo. The Court granted Plaintiffs 90 days to conduct their limited discovery.

March 29, 2018 – The Ninth Circuit granted a request to remand the case to the district court to address Defendants’ mootness arguments in the first instance. In May 2018, Defendants filed a motion to dismiss and dissolve the preliminary injunction, asserting that the Agency Memo provisions at issue had expired. Plaintiffs filed a motion to reinstate their request for limited discovery on Defendants’ compliance with the preliminary injunction.

January 9, 2018 – The Court denied Defendants’ motion for a stay pending appeal, which Defendants filed as an “emergency” motion on December 29, 2017. Noting that “Defendants simply rehash arguments this court has already rejected,” the Court held that a stay of the injunction was not warranted for several reasons. First, Defendants’ action concerning follow-to-join refugees “run roughshod” over the family reunification provision of the INA, and “[w]here the Government’s actions thwart Congressional intent and undermine Congressionally-enacted statutes, the public interest is best served by curtailing those actions.” Second, Defendants “cannot simply rely on unspecified security concerns,” and there is no evidence in the record that follow-to-join refugees or refugees from 11 targeted countries pose a security threat. In addition, Defendants had claimed in their motion for a stay that they would in fact permit some refugees to travel to the United States—those who had received travel papers as of October 24, 2017, the date of the fourth Executive Order—and the Court held that Defendants’ decision to admit this group of refugees undermined their own arguments that a stay was necessary for security reasons.

January 5, 2018 – The Court denied Defendants’ motion for reconsideration, filed on December 27, 2017, in which they asked the Court to modify its injunction to exclude refugees with an “assurance” from a resettlement agency in the United States. The Court noted that, by including refugees with assurances within the definition of refugees with a “bona fide relationship” to a person or entity in the United States, it was following binding Ninth Circuit precedent.

January 4, 2018 – Defendants filed an appeal with the Ninth Circuit.

December 23, 2017 – The Western District of Washington granted the preliminary injunction sought by Plaintiff Joseph Doe, enjoining Defendants from enforcing the provisions of the memorandum that suspended the admission of “follow-to-join” refugees (spouses and minor children of admitted refugees) into the United States and that suspended the processing of follow-to-join refugee applications. In granting the preliminary injunction, the Court recognized the importance that Congress placed on family reunification in the Immigration and Nationality Act (“INA”), explaining that the INA “was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members” and that the INA should be construed in accordance with its “humane purpose… to reunite families.”

The Court also granted a preliminary injunction sought in a related case, JFS v. Trump, which was consolidated with Doe v. Trump, enjoining Defendants from enforcing the provisions of the memorandum that suspended processing of principal refugee applications for nationals of certain countries, with respect to refugees with a bona fide relationship to a person or entity within the United States.

November 6, 2017- Keller Rohrback, as cooperating attorneys for the ACLU of Washington, filed an amended complaint challenging the Trump administration’s attempt to keep apart refugees living in the United States from reuniting with their spouses and children as well as his latest series of orders which, together, essentially continue to impose a Muslim ban. In addition, Keller Rohrback filed a motion in federal court seeking a Preliminary Injunction on behalf of Plaintiff Joseph Doe, a refugee living in Washington state who has been trying for over two years to bring his wife and young children here to live with him, and all others in Washington in a similar situation.

Joseph Doe’s wife and children had passed all the required clearances and had already been assured by a refugee resettlement organization this past summer. Keller Rohrback’s motion challenges the administration’s continued indefinite suspension of the refugee admissions program for spouses and children of refugees. Under the Immigration & Nationality Act (INA), which is a federal statute created by Congress, people admitted to the U.S. as refugees have a right to be reunited with their spouses and children as long as they satisfy the government’s rigorous vetting process.

October 24, 2017 – President Trump issued an executive order titled “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities” in which he proclaimed that “Presidential action to suspend the entry of refugees under the USRAP is not needed at this time to protect the security and interests of the United States and its people.” (USRAP is the United States Refugee Admissions Program.) But an October 23, 2017, memorandum from the heads of three administrative agencies (“Agency Memo”) makes clear the administration intends to continue its illegal ban: it announced an indefinite suspension on the admission of the spouses and children of refugees now living in the United States who are entitled to admission by the INA.

September 24, 2017 – President Trump issued a Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” Like the earlier two travel ban executive orders, the Proclamation restricts the entry of foreign nationals, this time from six predominantly Muslim countries: Iran, Libya, Syria, Yemen, Somalia and Chad.

The Proclamation indefinitely bans immigration by nationals of these countries and restricts the issuance of non-immigrant visas to these nationals. The Proclamation also suspended the entry of immigrants and non-immigrants from North Korea (according to Department of State statistics, the Proclamation will likely affect fewer than 100 people) as well as the issuance of non-immigrant visas to certain governmental officials from Venezuela. Courts in Hawaii and Maryland have issued orders preliminarily the provisions of the Proclamation relating to the six predominantly Muslim countries. Those orders are being appealed.

Case Status

The case is pending in the Western District of Washington.

Resources

Civil Rights Litigation Clearinghouse

United States Courts for the Ninth Circuit – State of Hawaii, et al. v. Trump

United States Court of Appeals for the Fourth Circuit – International Refugee Assistance Project v. Trump

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