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Arab American Civil Rights League v. Trump

United States District Court, E.D. Michigan, Southern Division

July 10, 2019

DONALD TRUMP, et al., Defendants.




         On September 24, 2017, President Donald J. Trump issued Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”), 82 Fed. Reg. 45161 (Sept. 27, 2017).

         Four individuals and five organizations (“Plaintiffs”) bring a constitutional challenge to the Proclamation, claiming that it violates: (1) the Establishment Clause of the First Amendment (Count I); (2) the equal protection component of the Fifth Amendment's Due Process Clause (Count II); and (3) their First Amendment rights to freedom of speech and association (Count III).

         Before the Court is Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint. The Court DENIES the Motion.


         A. The Proclamation

         The Proclamation was the third iteration of the President's efforts to ban the entry of nationals from certain predominantly Muslim countries into the United States. See Exec. Order 13, 769, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-1”), 82 Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order 13, 780, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-2”), 82 Fed. Reg. 13209 (Mar. 9, 2017).

         Preceding EO-1, EO-2, and the Proclamation, President Trump, as a presidential candidate, president-elect, and President, repeatedly made public statements exhibiting prejudice against Muslims and describing his desire and intention to prevent Muslims from entering the United States. For example, on December 7, 2015, then candidate Trump published a “Statement on Preventing Muslim Immigration” on his campaign website in which he “call[ed] for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.” On March 9, 2016 during a televised interview, he stated: “I think Islam hates us” and “[W]e can't allow people coming into this country who have this hatred of the United States . . . and [of] people that are not Muslim.”

         In the summer of 2016, President Trump had Rudolph Giuliani, a campaign advisor, establish a commission to advise President Trump on his proposed Muslim ban; in a television interview, Giuliani explained that President Trump directed him to put the “Muslim ban” into effect “legally.” In early July 2016, Giuliani indicated that his commission caused President Trump's proposal to shift from a “general ban” to “very specific, targeted criteria” focusing on specific countries.

         President Trump quickly adopted the commission's recommended strategy for putting the “Muslim ban” into effect “legally.” For instance, in a July 24, 2016 interview, President Trump stated that he would accomplish his Muslim ban by barring entry from certain “territor[ies]” because “[p]eople were so upset when I used the word ‘Muslim.'” During a debate on October 9, 2016, one month before the election, President Trump stated that “[t]he Muslim Ban is something that in some form has morphed into extreme vetting from certain areas of the world.”

         On March 6, 2017 - a month after EO-1 was enjoined - President Trump issued EO-2. On March 15, 2017, the United States District Court for the District of Hawaii granted a temporary restraining order against EO-2. In a rally that same evening, President Trump said EO-2 “was a watered-down version of the first order” and “I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”

         While the legality of EO-2 was litigated, President Trump continued making statements reflecting his intention to fulfill his campaign promise to block the entry of Muslims into the United States. On June 5, 2017, President Trump tweeted: “The lawyers and courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” President Trump expressed his intent to issue a third travel ban for the same purpose, stating that the Justice Department “should have stayed with the original Travel Ban, not the watered down, politically correct version” and that there should be a “much tougher version” of the ban. On September 15, 2017, nine days before the release of the Proclamation, President Trump tweeted that “the travel ban into the United States should be far larger, tougher, and more specific - but stupidly, that would not be politically correct!”

         On September 24, 2017, EO-2 expired, and President Trump issued the Proclamation the same day. He stated, “The travel ban: the tougher, the better.”

         On November 25, President Trump tweeted, “need the BAN.” On November 29, 2017, President Trump retweeted links to three anti-Muslim videos which portrayed Muslim individuals committing acts of violence. In response to questions about those videos and whether President Trump thought Muslims are a threat to the United States, the President's deputy press secretary stated that “the President has been talking about these security issues for years now, from the campaign trail to the White House, ” and he “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.”

         On October 17, 2017, the United States District Court for the District of Hawaii enjoined enforcement of the Proclamation; it found that the plaintiffs were likely to succeed on their claim that the Proclamation exceeded the scope of the President's statutory authority under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1182(f) and 1185(a), as well as their claim that the Proclamation violates the INA's prohibition on nationality-based discrimination with respect to the issuance of immigrant visas, § 1152(a)(1)(A). Hawaii v. Trump, 265 F.Supp.3d 1140, 1158-59 (D. Haw.), aff'd in part, vacated in part, 878 F.3d 662 (9th Cir. 2017), cert. granted, 138 S.Ct. 923 (2018), and rev'd and remanded, 138 S.Ct. 2392 (2018).

         That same day, the United States District Court for the District of Maryland entered a preliminary injunction against enforcement of Section 2(c) of the Proclamation. Int'l Refugee Assistance Project v. Trump, 265 F.Supp.3d 570 (D. Md. 2017), aff'd, 883 F.3d 233 (4th Cir. 2018), judgment vacated, 138 S.Ct. 2710 (2018). In relevant part, the Maryland court held that plaintiffs were likely to succeed on their claim that the Proclamation violates the Establishment Clause. Id. at 628-29.

         The Government appealed the injunctions. The Supreme Court granted a stay of the injunctions pending disposition of the Government's appeals. The Fourth and Ninth Circuits affirmed the injunctions entered by the Districts of Maryland and Hawaii. The Supreme Court granted the Government's petition for a writ of certiorari in both cases.

         On June 26, 2018, the Supreme Court held that the plaintiffs had not demonstrated a likelihood of success on their claim that the Proclamation violated the Establishment clause. Trump v. Hawaii, -- U.S. --, 138 S.Ct. 2392, 2423 (2018). Although not particularly relevant to any of Plaintiffs' claims here, the Court also overruled the plaintiffs' statutory challenges under the INA, finding that the Proclamation did not exceed the President's authority under 8 U.S.C. § 1182(f). Id. at 2412, 2415.

         B. The Proclamation

         In a recent decision deciding a similar motion to dismiss by the Government, see Int'l Refugee Assistance Project v. Trump (“IRAP”), 373 F.Supp.3d 650 (D. Md. 2019), the United States District Court for the District of Maryland succinctly summarizes the relevant aspects of the Proclamation:

The Proclamation states that “absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States” of nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (the “Designated Countries”) “would be detrimental to the interests of the United States.” Procl. pmbl. Specifically, the Proclamation suspends the entry of all immigrants from seven of the eight Designated Countries, excepting only Venezuela. The ban on entry by nonimmigrants is “more tailored, ” with a narrower ban imposed on countries with mitigating circumstances such as a willingness to play a substantial role in combating terrorism. Id. § 1(h)(iii).
As justification for the ban, the Proclamation references a July 9, 2017 report by the Acting Secretary of Homeland Security, issued pursuant to the requirements of EO-2, describing a “worldwide review” conducted in consultation with the Secretary of State and the Director of National Intelligence. In that review, these officials selected baseline criteria for assessing the sufficiency of the information provided by foreign governments to permit the United States to confirm the identities of individuals seeking to enter the country and make a security assessment about them. Id. § 1(c) . . . .
According to the Proclamation, pursuant to the process set forth in EO-2, nearly 200 countries were evaluated based on the criteria. Of those, 16 nations were found to be “inadequate” and 31 were found to be at risk of becoming so. In accordance with Section 2(d) of EO-2, those nations were given 50 days to bring their information-sharing practices into compliance with the United States'[] expectations. At the end of that 50-day period, eight countries were determined to have continued inadequate information-sharing practices: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. In a September 15, 2017 report to the President[], the Acting Secretary of Homeland Security recommended that entry restrictions be imposed on all of those countries with the exception of Iraq. Although Somalia's information-sharing practices were found to be adequate, the Acting Secretary of Homeland Security recommended that Somalia also be subjected to entry restrictions. Venezuela is the only designated country for which entry of immigrants is not suspended. Limitations on the entry of Venezuelan nationals are confined to barring entry of specific government officials and their immediate family members, who are suspended from traveling to the United States on B-1, B-2, and B-1/B-2 visas.
In addition to providing exceptions for lawful permanent residents, dual nationals if traveling on a passport issued by a non-designated country, and foreign nationals who have been granted asylum status or who have been already admitted to the United States as refugees, the Proclamation provides for waivers, to be granted on a case-by-case basis by either a State Department consular officer or an official of United States Customs and Border Protection (“CBP”), based on criteria to be developed by the Secretary of State and the Secretary of Homeland Security. The Proclamation expressly provides that waivers may be granted only upon a showing that (1) denying entry would cause the foreign national undue hardship; (2) allowing entry would not pose a national security or public safety threat; and (3) entry would be in the national interest.
The Proclamation went into effect when it was published as to foreign nationals then barred by EO-2. For all other covered foreign nationals, it became effective on October 18, 2017. On April 10, 2018, Chad ...

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