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Aziz v. Trump

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

February 13, 2017

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

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         In this civil action, the Commonwealth of Virginia ("Commonwealth") alleges that Executive Order 13, 769, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States" ("the EO"), violates the First and Fifth Amendments to the United States Constitution, as well as the Immigration and Nationality Act and Religious Freedom Restoration Act. Before the Court is the Commonwealth's Motion for a Preliminary Injunction, to which defendants have responded and on which oral argument has been held. Attached to the Commonwealth's motion were multiple exhibits and declarations. The defendants have responded with no evidence other than the EO, which they have defended primarily with arguments attacking the Commonwealth's standing to oppose the EO and emphasizing the authority of the president to issue such an EO. For the reasons that follow, the Commonwealth's Motion for a Preliminary Injunction will be granted.

         I. FINDINGS OF FACT

         A. The Executive Order

         On January 20, 2017, Donald Trump ("Trump") was inaugurated as the 45th President of the United States. On January 27, 2017, he signed the EO. Section 3 of the EO "proclaimed] 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[ed] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order." [Dkt. 7-1] § 3(c). Although the EO specifically 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"[1] from the ban on entry, it does not list lawful permanent residents ("LPRs") among those excluded. Id. Section 5 of the EO suspends the United States Refugee Assistance Program ("USRAP") for persons from all countries for 120 days. Id. at § 5(a). Once the suspension has ended, the EO directs the Secretaries of State and Homeland Security "to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality." Id. at § 5(b).

         Section 1 describes the stated purpose for the EO as follows:

Numerous foreign-bom individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

[Dkt. 31-1] § 1. Section 2 goes on to declare it to be "the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes." I<L § 2.

         The EO was initially applied to LPRs, and the defendants have since conceded that Customs and Border Patrol ("CBP") initially stopped several LPRs at the border in the 24 to 48 hours after the EO was signed, although they represent that all such persons have since been permitted to enter the United States. After initial confusion within the executive branch, [Dkt. 61-17], Homeland Security Secretary John Kelly released a statement on Sunday, January 29, announcing that he "deem[ed] the entry of lawful permanent residents to be in the national interest" and that "lawful permanent resident status will be a dispositive factor in our case-by-case determinations, " [Dkt. 61-1].

         The next day, White House Counsel Donald F. McGahn II issued a memorandum stating that "there has been reasonable uncertainty about whether [Section 3 of the EO] appl[ies] to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Section 3(c) ... do[es] not apply to such individuals." [Dkt. 34-1]. Defendants have argued that in light of this memorandum, the EO cannot be interpreted to apply to LPRs; however, a voluntary change of policy cannot be taken as binding unless it is "absolutely clear" that the government will not revert to its original position. Friends of the Earth, Inc. v. Laidlaw Envf 1 Servs. (TOO. Inc.. 528 U.S. 167, 189 (2000). As the Ninth Circuit observed in related litigation, defendants have "offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the president... and that proposition seems unlikely, " nor have they "established that the White House counsel's interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing" it. Washington v. Trump. ___ F.3d ___, 2017 WL 526497, at *8 (9th Cir. 2017). Accordingly, the Court finds that the EO presents an ongoing risk to the status of LPRs from the seven countries covered by the EO.

         B. Injuries to the Commonwealth and its Residents

         The Commonwealth has produced evidence of the EO being disruptive to the operation of its public colleges and universities. As the declaration of W. Taylor Reveley III ("Reveley"), who is president of the College of William & Mary and the chair of the Council of Presidents, a group consisting of the presidents and chancellors of Virginia's 14 public universities and colleges and 23 community colleges, [Dkt. 32] at ¶¶ 1-2, explains, the EO affects international travel of at least 350 students attending Virginia Commonwealth University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary combined.[2] [Dkt. 32] at ¶ 5. That number includes at least two students who were abroad when the EO was issued and were denied reentry to the United States on its authority. Id. at ¶ 6.[3] At one university, Iranian-born faculty and students "have had to cancel their plans to present their work at an international conference on engineering" because they believe they are likely to be denied reentry to the United States. Id. at ¶ 7. The EO is also disrupting the process by which medical students "match" with academic hospitals for their residency, which takes place this month. Id. at ¶ 8. At least two Virginia universities have already had to cancel appearances by foreign scholars as a result of the EO. Id. at ¶ 9. Students have also begun withdrawing applications to attend Virginia schools as a result of the travel ban, and at least two students who had already announced an intention to enroll in Virginia schools have now abandoned those plans. Id. at ¶ 11. The affected students and faculty "must refrain from leaving the United States for fear of not being able to return, " Id. at ¶ 7, and "are unsure whether they should take the trips they had planned to visit family and fulfill research obligations, whether future trips should be planned, and whether members of their family or research partners will be able to visit the United States, " Id. at ¶ 14. The defendants provided no evidence to counter these representations.

         The Commonwealth has also presented evidence that enforcement of § 3(c) of the EO will have a financial impact on its colleges and universities. Most concretely, the EO will result in reduced revenue from tuition money from students who cannot return to continue their studies or who are unable to enroll. [Dkt. 32] at ¶ 11. Department of Homeland Security data from 2015, the most recent year available, shows that 465 student visa holders from the affected countries were enrolled in Virginia schools. [Dkt. 61-15] at 4. College Factual, a company that specializes in higher education analytics, estimates that this could result in up to $20.8 million in lost tuition and fees. Id.; [Dkt. 61-16] at 1. Although the Commonwealth has not identified any specific grants or contracts that are in immediate jeopardy, it also argues that the EO may inhibit the ability of research universities to fulfill the terms of various grants and contracts. [Dkt. 32] at ¶12.

         Reveley also avers that university personnel are experiencing "anxiety, confusion, and distress" because of the uncertainty introduced by the EO, such that some universities "have experienced an uptick in students, employees, and faculty using their counseling services." Id. at ¶ 14. Finally, Reveley and other administrators are concerned that the EO could imperil Virginia students who are studying abroad, by inflaming "anti-American sentiment[.]" Id. at ¶ 15. Again, defendants have not tendered any evidence to refute these concerns.

         C. The Government's Asserted Rationale for the EO

         Defendants have maintained that the EO is necessary to protect the United States from terrorist attacks to be carried out by nationals of the seven affected countries [Dkts. 31-1, 80]; however, they have not offered any evidence to identify the national security concerns that allegedly prompted this EO, or even described the process by which the president concluded that this action was necessary.[4]

         And contrary to the national security concerns recited in the EO, the only evidence in the record on this subject is a declaration of 10 national security professionals who have served at the highest levels of the Department of State, the Department of Homeland Security, the Central Intelligence Agency, and the National Security Council through both Republican and Democratic administrations, [Dkt. 57], and at least four of whom "were current on active intelligence regarding all credible terrorist threat streams directed against the [United States] as recently as one week before the issuance of the" EO. Id. at ¶ 2. They write

We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.

Id. at ¶ 3. They also observe that since September 11, 2011, "not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order." Id. at ¶ 4.

         D. The President's Public Comments

         The Commonwealth's evidence also contains several statements by the president and his senior advisors on the subject of immigration to the United States by Muslims. Although defendants dispute the relevance of these statements, as discussed below, they have not contested their accuracy.

         On December 7, 2015, then-candidate Trump issued a press released titled "Donald J. Trump's Statement on Preventing Muslim Immigration." [Dkt. 61-12]. In the statement, he called "for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Id.

         The latter statement is consistent with views that the president has expressed on various occasions over the last six years. A representative example[5] can be found in a 2011 interview with Fox News's Bill O'Reilly ("O'Reilly"). A portion of that interview reads:

O'Reilly: Is there a Muslim problem in the world? Trump: Absolutely. Absolutely. I don't notice Swedish people knocking down the World Trade Center.
O'Reilly: But you do believe overall there is a Muslim problem in the world.
Trump: Well, there is a Muslim problem. Absolutely. You just have to turn on your television set.
O'Reilly: And do you think it encompasses all Muslims?
Trump: No. And that's the sad part about life. Because you ...

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