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Sarsour v. Trump

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

March 24, 2017

LINDA SARSOUR, et al., Plaintiffs,
DONALD J. TRUMP, et al., Defendants.


          Anthony J. Trenga United Stares District Judge

         Presently pending before the Court is Plaintiffs' “Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction” [Doc. No. 13] (the “Motion”). The Court held a hearing on the Motion on March 21, 2017, following which it took the Motion under advisement. Upon consideration of the Motion, the memoranda in support thereof and in opposition thereto, the arguments of counsel at the hearing held on March 21, 2017, and for the reasons set forth below, the Motion is DENIED.[1]

         I. BACKGROUND

         The Plaintiffs seek an emergency order enjoining the enforcement of Executive Order 13, 780 (“EO-2” or the “Order”), issued by President Donald J. Trump (“President Trump” or the “President”) on March 6, 2017 and scheduled to go into effect on March 16, 2017. Subject to a number of enumerated limitations, exemptions, and waivers, the Order suspends entry into the United States by nationals of six countries for 90 days and by all refugees for 120 days. EO-2 explicitly rescinds Executive Order 13, 769 (“EO-1”), which similarly temporarily barred nationals from certain countries from obtaining visas or entering the United States but did not contain the exemptions and waivers now in EO-2 and also included certain religious preferences no longer in EO-2.

         The ultimate issue in this action is whether the President exceeded his authority, either as delegated to him by Congress or as provided by the Constitution. But because Plaintiffs seek at the beginning of this case the relief they would ultimately obtain at the end of the case should they prove successful, Plaintiffs must show not only that (1) they are likely to succeed on the merits of their claim that EO-2 exceeded the President's authority, but also that (2) without immediate injunctive relief, Plaintiffs face imminent irreparable harm; (3) the balance of equities, including the balance of hardships, weigh in their favor; and (4) issuance of the requested injunction on an emergency basis is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

         A. Factual History

         1. Executive Order No. 1

         On January 27, 2017, President Trump issued Executive Order 13, 769, titled “Protecting the Nation from Foreign Terrorist Entry into the United States, ” 82 Fed. Reg. 8977 (Jan. 27, 2017). EO-1 immediately suspended immigrant and nonimmigrant entry into the United States for 90 days to aliens from Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen. EO-1 also suspended the U.S. Refugee Admissions Program (“USRAP”) for 120 days, id. § 5(a), and suspended the entry of all refugees from Syria indefinitely, id. § 5(c). Furthermore, in screening refugees, government bodies were directed “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. § 5(b). The order provided for “case-by-case” exceptions to the 120-day refugee suspension. Id. § 5(f).

         A group of plaintiffs including the State of Washington and the State of Minnesota challenged EO-1 on both constitutional and statutory grounds in the United States District Court for the Western District of Washington. See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). On February 3, 2017, the district court issued a nationwide injunction halting enforcement of the operative portions of that order, although it did not provide a specific basis for finding that the plaintiffs were likely to succeed on the merits. Id. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit denied the defendants' emergency appeal to stay the district court's order, which it construed as a preliminary injunction. Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017). The Ninth Circuit found that the defendants had not demonstrated a likelihood of success on the merits as to the plaintiffs' procedural due process claim, but it reserved judgment on the plaintiffs' Establishment Clause and Equal Protection Clause claims, noting that they “raise[d] serious allegations and present[ed] significant constitutional questions.” Id. at 1168.

         Separately, on February 13, 2017, this Court enjoined the enforcement of section 3(c) only as to Virginia residents and students enrolled in state educational institutions located in the State of Virginia. Aziz v. Trump, No. 1:17-cv-116, __ F.Supp.3d __, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) (Brinkema, J.). This Court ruled that the plaintiffs had clearly demonstrated a likelihood of success on the merits of their Establishment Clause claim, but it did not address their other claims. That injunction has not been appealed.

         2. Executive Order No. 2

         Responding to the successful legal challenges to EO-1, on March 6, 2017, President Trump issued EO-2. EO-2 explicitly rescinds EO-1 and was scheduled to go into effect on March 16, 2017 at 12:01 a.m. EDT. EO-2 has the same title as EO-1 and has many of the same stated policies and purposes. It also has substantial differences, as discussed in detail below. Briefly summarized, EO-2 removes Iraq from the list of designated countries whose nationals are covered by the Order, eliminates the indefinite suspension of all refugees from Syria, exempts otherwise covered persons who are located in the United States or who had appropriate travel documents as of the date on which EO-1 was issued, provides a list of categories where otherwise covered persons qualify for consideration of a waiver, and removes any religious-based preferences for waivers. The Order also contains substantially more justification for its national security concerns and the need for the Order, including why each particular designated country poses specific dangers.

         Before the Order's effective date, the State of Hawaii and a United States citizen challenged the Order in the United States District Court for the District of Hawaii. On March 15, 2017, the Hawaii court issued a nationwide temporary restraining order (“TRO”) enjoining the enforcement of sections 2 and 6 of EO-2. Hawai‘i v. Trump, No. 1:17-cv-00050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017). At the hearing in this action before this Court on March 21, 2017, Defendants represented that they expected the District of Hawaii court to extend the TRO, with their consent, until that court decides the pending motion for a preliminary injunction, a hearing on which has been scheduled for March 29, 2017.[2] The TRO has not been appealed.

         A separate group of six individuals and three organizations challenged EO-2 in the United States District Court for the District of Maryland, alleging that it inflicted stigmatizing injuries as well as various other more particularized forms of harm. In an order Dated: March 15, 2017 but entered on March 16, 2017, the Maryland court issued a nationwide preliminary injunction enjoining the enforcement of section 2(c) of EO-2. Int'l Refugee Assist. Proj. v. Trump, No. 8:17-cv-00361-TDC, __ F.Supp.3d __, 2017 WL 1018235 (D. Md. Mar. 16, 2017).

         Litigation in the Western District of Washington also continues. In that case, Plaintiffs filed an emergency motion to enforce the court's February 3, 2017 preliminary injunction of EO-1. The district court rejected that motion, finding that EO-2 did not violate the court's prior preliminary injunction because EO-2 is substantively different from EO-1. Order Denying Washington's Emergency Motion to Enforce the Preliminary Injunction, Washington v. Trump, No. C17-0141JLR (W.D. Wash. Mar. 16, 2017), ECF No. 163.

         By way of summary, at this point, the District of Hawaii court's TRO remains in effect as to sections 2 and 6 of the Order until March 29, 2017, and the District of Maryland court's preliminary injunction remains in effect as to section 2(c) of the Order. All other sections of EO-2 are in force at this time. Plaintiffs in this litigation ask this Court to enjoin the enforcement of EO-2 in its entirety.

         B. Plaintiffs Who Move for Emergency Relief

         All Plaintiffs are Muslims who are presently residing in various locations across the country and claim that they have been harmed by the issuance of EO-2 in a variety of ways. Among the injuries they allege is the harm created by a stigma against Muslims living in the United States. Specifically, they claim that as a result of Defendants' conduct, beginning with the initial announcement of the “Muslim Ban, ” Defendants have promoted views that (1) disfavor and condemn their religion of Islam; (2) marginalize and exclude Muslims, including themselves, based on the claim that Muslims are disposed to commit acts of terrorism; (3) endorse other religions and nonreligion over Islam; (4) Muslims are outsiders, dangerous, and not full members of the political community; and (5) all non-adherents of Islam are insiders and therefore favored. Amended Complaint [Doc. No. 11] (“AC”) ¶¶ 20-38. In addition, Plaintiffs allege a range of other injuries based on each's particular status in the United States and each's relationships with persons outside of the United States. The following eight Plaintiffs have joined in the Motion.[3]

         Plaintiffs Basim Elkarra, Hussam Ayloush, and Adam Soltani are United States citizens who allegedly “are no longer able to bring their family members from Syria and Iran to visit them in the United States as a direct result of the Revised Muslim Ban [EO-2] as they otherwise would.” Plaintiffs' Motion (“Pls.' Mot.”) 6. They further allege that, as “prominent civil rights and grassroots activists, ” they “have had to change their conduct adversely in that they have been required to assist and advocate on behalf of Muslims targeted or stigmatized by the First Muslim Ban [EO-1], push back against the anti-Muslim sentiment fomented and legitimized by Defendants, and defend their religion as a religion of peace on national media outlets and through grassroots efforts.” Id.

         Plaintiff John Doe No. 6 is also a United States citizen. He recently filed a marriage petition for his Sudanese wife currently residing outside of the United States, which he claimed would be “subjected to a more onerous application process that will require her to make heightened showings to obtain a waiver from the Revised Muslim Ban [EO-2], pursuant to Sec. 3(c)(iv) of the Revised Muslim ban, based solely on her Sudanese national origin.” Id. 6-7. That petition was approved while this Motion was pending, however, [see Doc. No. 31], and her visa application is now pending.

         Plaintiffs John Doe Nos. 7 and 8 are lawful permanent residents of the United States. John Doe No. 7 is a Syrian national, and John Doe No. 8 is a Sudanese national. John Doe No. 7 filed a marriage petition for his wife, which is currently pending. John Doe No. 8 also filed a marriage petition for his wife, which was approved, but her visa application remains pending. These three Plaintiffs allege that under EO-2, “their wives' visa applications will be subject to a more onerous application process that will require [them] to make heightened showings to obtain a waiver from the Revised Muslim Ban.” Id. 7.

         Plaintiffs John Doe Nos. 2 and 3 are students of Somali and Yemeni national origin who were issued single-entry F-1 student visas which expire upon completion of their studies. They allege that they intended to travel outside of the United States but that, if they do so now, they “will be subjected to a more onerous application process that will require them to make heightened showings to obtain a waiver.” Id. They claim that this inability to travel imposes a hardship because they are additionally deprived of the opportunity to see their families, and they may not be able to stay in student housing during school breaks. Id. 7-8.

         C. Procedural History

         President Trump issued EO-1 on January 27, 2017. Three days later, on January 30, 2017, Plaintiffs filed their Complaint for Injunctive and Declaratory Relief [Doc. No.1] against President Trump, Secretary of the Department of Homeland Security John F. Kelly, the U.S. Department of State, and the Director of National Intelligence.[4] Then, on March 13, 2017, [5] after President Trump's March 6, 2017 issuance of EO-2, which explicitly rescinded EO-1, Plaintiffs filed their Amended Complaint for Injunctive and Declaratory Relief [Doc. No. 11] as well as their presently pending “Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction” [Doc. No. 13].


         Federal Rule of Civil Procedure 65 authorizes federal courts to issue temporary restraining orders and preliminary injunctions. “The standard for granting either a TRO or a preliminary injunction is the same.” Moore v. Kempthorne, 464 F.Supp.2d 519, 525 (E.D. Va. 2006) (citation omitted) (internal quotation marks omitted). Both are “extraordinary remedies involving the exercise of a very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, 245 F.3d 335, 339 (4th Cir. 2001). The movants bear the burden to establish that (1) they are likely to succeed on the merits of their case; (2) they are likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of the equities tips in their favor; and (4) an injunction would be in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Manning v. Hunt, 119 F.3d 254, 263 (4th Cir. 1997); see also Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013).

         III. ANALYSIS

         A. Standing

         In order to obtain the requested injunction, Plaintiffs must first demonstrate that they have standing to challenge EO-2. Defendants dispute that any of the Plaintiffs have standing. “Standing doctrine functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191. To establish standing, a plaintiff must set forth specific facts to demonstrate that (1) he has “suffered an ‘injury in fact' . . . which is (a) concrete and particularized . . . and (b) ‘actual or imminent, not conjectural or hypothetical”; (2) there exists “a causal connection between the injury and the conduct complained of”; and (3) “it must be ‘likely, ' as opposed to merely ‘speculative, ' that the injury will be ‘redressed by a favorable decision.'” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). Plaintiffs must demonstrate standing for every claim, but a claim is justiciable if even only one Plaintiff has standing to raise it. Bostic v. Schaefer, 760 F.3d 352, 370-71 (4th Cir. 2014).

         Because of the nature of Plaintiffs' statutory and constitutional claims, their showing of standing may be based on subjective, non-economic, or intangible injuries. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997) (“[R]ules of standing recognize that noneconomic or intangible injury may suffice to make an Establishment Clause claim justiciable.”); Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605 (4th Cir. 2012) (“[P]laintiffs have been found to possess standing when they are ‘spiritual[ly] affront[ed]' as a result of ‘direct' and ‘unwelcome' contact with an alleged religious establishment within their community.” (quoting Suhre, 131 F.3d at 1086-87)); Bostic, 760 F.3d at 372 (Equal Protection Clause challenges, like Establishment Clause challenges, can be premised on “stigmatic injury stemming from discriminatory treatment.”). However, the allegation of injury in the form of a stigma alone is insufficient to support standing; there must also be a “cognizable injury caused by personal contact [with the offensive conduct].” Suhre, 131 F.3d at 1090; see also Moss, 683 F.3d at 607 (finding standing where plaintiffs alleged “outsider” status after having received a letter from their school district promoting a “course of religious education [with] Christian content” and “prayers and other Christian references [at] school events”).

         In this case, all Plaintiffs claim that in addition to the stigma that the Order has imposed on them as Muslims, they have suffered “cognizable injury caused by personal contact” because EO-2 prevents or impermissibly burdens their ability to (1) reunite with their foreign national spouses or other relatives; (2) travel internationally without fear of forfeiting their own visas; (3) renew their visas without being subjected to a heightened standard of review; and (4) attend other life activities without the need to combat the pernicious effects of EO-2 through religious advocacy and outreach. Based on these alleged injuries and the facts that have been presented, the Court finds for the purposes of the Motion that Plaintiffs have made a sufficient showing that they have standing to challenge EO-2.

         B. Plaintiffs' Likelihood of Success on the Merits

         Section 2(c) of EO-2 suspends the entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, subject to the limitations, exemptions, and waivers in sections 3 and 12. Section 6 of EO-2 suspends decisions on applications for refugee status worldwide for 120 days, subject to waivers issued under section 6(c). Plaintiffs seek to enjoin EO-2 in its entirety on the grounds that all or parts of the Order exceed the President's statutory or constitutional authority and that, in any event, the Order, as a whole, has the unconstitutional effect of imposing upon them a stigma based on their status as Muslims.

         “[A] party seeking a preliminary injunction . . . must clearly show that it is likely to succeed on the merits.”[6]Dewhurst v. Century Alum. Co., 649 F.3d 287, 290 (4th Cir. 2011). The “requirement . . . is far stricter than . . . [a] requirement that the plaintiff demonstrate only a grave or serious question for litigation.” Real Truth About Obama, Inc. v. F.E.C., 575 F.3d 342, 346-47 (4th Cir. 2009), judgment vacated on other grounds, 559 U.S. 1089 (2010), and adhered to in relevant part, 607 F.3d 355 (4th Cir. 2010).[7] In determining whether the Plaintiffs have made the required showing, the issue is not whether EO-2 is wise, necessary, under- or over-inclusive, or even fair. It is not whether EO-2 could have been more usefully directed to populations living in particular geographical areas presenting even greater threats to national security or even whether it is politically motivated. Rather, the core substantive issue of ...

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