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Mohammed Aziz v. Trump

United States District Court, E.D. Virginia, Alexandria Division

February 3, 2017

TAREQ AQEL MOHAMMED AZIZ, et al, Petitioners/Plaintiffs,
DONALD TRUMP, President of the United States, et al, Respondents/Defendants.


          Leonie M. Brinkema United States District Judge

         On Friday, February 3, 2017, after hearing oral argument, the Court granted a Motion to Intervene by the Commonwealth of Virginia ("the Commonwealth") and a Motion to Intervene by Osman Nasreldin ("Nasreldin") and Sahar Kamal Ahmed Fadul ("Fadul"). This Memorandum Opinion supplements the reasoning articulated in open court.

         I. BACKGROUND

         On January 27, 2017, President Donald Trump signed an executive order titled "Protecting the Nation from Foreign Terrorist Entry into the United States" ("the EO"). Section 3 of the EO includes a proclamation "that the immigrant and nonimmigrant entry into the United States of aliens from" Syria, Iraq, Iran, Libya, Sudan, Yemen, and Somalia "would be detrimental to the interests of the United States" and "suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order." Pet. Ex. A, [Dkt. 7-1] at 3. Although the EO explicitly excludes "foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-l, G-2, G-3, and G-4 visas" from the ban on entry, it does not exclude persons who have been granted lawful permanent residency.[1] Id.

         The named petitioners, [2] Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, are Yemeni citizens (and brothers) who were holders of IR2 immigrant visas[3] issued by the U.S. Embassy in Djibouti. They arrived at Dulles on Saturday, January 28, 2017. According to the petition, they were handcuffed upon deplaning and told by Customs and Border Protection ("CBP") agents that they would be sent to Yemen and barred from entry into the United States for five years if they did not sign Form 1-407, which is titled "Record of Abandonment of Lawful Permanent Resident Status."[4] Confused and pressured by the representations of the CBP agents, petitioners signed the 1-407, after which CBP stamped "Cancelled" over their IR2 visas. Petitioners were then required to purchase return trip tickets to Addis Ababa, Ethiopia, at their own expense.

         The Aziz brothers' amended petition alleges seven counts: (1) Fifth Amendment Procedural and Substantive Due Process violations; (2) violations of petitioners' rights to enter the United States under the Immigration and Nationality Act ("INA"); (3) discrimination on the basis of nationality without sufficient justification in violation of the INA; (4) violations of the Establishment Clause; (5) violations of the Equal Protection Clause; (6) violations of the Administrative Procedure Act ("APA"); and (7) violations of the Religious Freedom Restoration Act[5]

         Intervenor plaintiff Fadul is a Somali citizen and the fiancee of intervenor plaintiff Nasreldin, a United States citizen and resident of Colorado. Fadul held a K-l visa[6] and was traveling from Addis Ababa, Ethiopia. Like the named petitioners, Fadul was one of the persons at Dulles "stopped by CBP agents, and forced to surrender her visa and accompanying immigration documentation." [Dkt. 26] at 2. Fadul alleges that she was required to sign a form rescinding her visa application without being given an opportunity to consult with a translator or legal counsel and then forced to purchase a return ticket on the first available flight to Addis Ababa.

         The Commonwealth of Virginia has moved to intervene under Rule 24 of the Federal Rules of Civil Procedure. The Commonwealth asserts a variety of connections to this litigation. First, it asserts a general parens patriae interest in the well-being of its citizens and residents, and a more particular interest in ensuring that such persons are not discriminatorily denied the benefits of federal law. Second, it argues that the government has "not complied fully and transparently" with the Temporary Restraining Order entered by this Court on January 28, 2017, directing that defendants "permit lawyers access to all legal permanent residents being detained at Dulles, " meaning that the Commonwealth "has been hindered in its ability to identify the Virginia residents who have been" detained or removed. Mot. to Intervene Memo. ("MTI"), [Dkt. 15] at 4. Third, the Commonwealth argues that its "public universities and their administration, faculty, students, and families are being harmed by the Executive Order" because several such persons are being prevented from returning to the United States or traveling from it by the EO. Id. These hindrances have the effect of "interfering with... employment relations and disrupting" operations. Id. Additionally, the Commonwealth alleges that certain faculty members "likely will be forced to forfeit their grant moneys" if they are unable to travel. Id


         A. Intervention

         Federal Rule of Civil Procedure 24(a)(2) requires a court to permit intervention by a party who "claims an interest relating to the... subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." The Fourth Circuit has articulated a three-part test for Rule 24(a)(2) intervention, requiring a movant to show: "(1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant's interest is not adequately represented by existing parties to the litigation." Teaeue v. Bakker. 931 F.2d 259, 260-61 (4th Cir. 1991).

         Even when a party may not intervene as of right, a court may permit intervention when the party "has a claim or defense that shares with the main action a common question of law or fact." Fed.R.Civ.P. 24(b)(1)(b). The Fourth Circuit favors "liberal intervention... to dispose of as much of a controversy" as possible. Feller v. Brock. 802 F.2d 722, 729 (4th Cir. 1986). When permissive intervention is being invoked, the key question is whether the existing parties would be prejudiced by allowing the intervention. Alt v. U.S. Envtl. Prot. Agency. 758 F.3d 588, 591 (4th Cir. 2014). This concern that is usually minimal early in the litigation process, id, and is not a barrier in this case as the only petitioners do not oppose the interventions and the defendants cannot show prejudice.

         Nasreldin and Fadul satisfy the standards for intervention as of right. They have an interest in the subject matter of the litigation because they allege nearly identical treatment as the named petitioners, and protection of their interest may be impaired by the action because an adjudication in the defendants' favor might deprive them of an opportunity to present additional arguments in support of their position. Their interest is not adequately represented by the existing parties because an adjudication in favor of the Aziz brothers would not necessarily resolve the matter of Fadul's entry into the United States.[7] They have also met the standard for permissive intervention because they share many questions of law and fact with the original petitioners. Indeed, the only obvious factual distinction is that Fadul held a K-l visa rather than an IR2 visa. Moreover, there is no significant danger that the original parties will be prejudiced by permitting them to join, particularly as less than a week had passed since the original petition was filed when Nasreldin and Fadul moved to intervene.

         The Commonwealth also satisfies the requirements for intervention as of right. As the standing analysis below outlines in greater detail, the Commonwealth has an interest in the subject matter of the litigation both as parens patriae and as the proprietor of numerous public universities. Its interests are not adequately represented by the existing parties because they are broader, covering a greater class of affected persons than merely holders of IR2 or K-l visas. For the same reason, the Commonwealth's interests are not adequately represented by the existing parties, because resolution of their claims might leave some of the Commonwealth's grievances unaddressed. Moreover, the Commonwealth satisfies the requirements for permissive intervention. Although the Commonwealth's legal claims do not overlap completely with petitioners', at least five of the counts in the Commonwealth's complaint are largely identical to the claims in the original petition. Moreover, DHS and CBP's actions in response to the EO form the common factual basis for both petitioners' and the Commonwealth's claims, and because the request was filed within 72 hours of the ...

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