Int'l Refugee Assistance Project v. Trump

961 F.3d 635

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, on behalf of itself and its clients; Hias, Inc., on behalf of itself and its clients; Middle East Studies Association of North America, Inc., on behalf of itself and its members; Arab American Association of New York, on behalf of itself and its clients; Yemeni-American Merchants Association, on behalf of itself and its members; IRAP John Doe #4; IRAP John Doe #5; IRAP Jane Doe #2; Muhammed Meteab; Mohamad Mashta; Grannaz Amirjamshidi; Shapour Shirani; Afsaneh Khazaeli; Iranian Alliances Across Borders; IAAB Jane Doe #1; IAAB Jane Doe #3; IAAB Jane Doe #5; IAAB John Doe #6; Iranian Students’ Foundation, Iranian Alliances Across Borders Affiliate at the University of Maryland College Park; Eblal Zakzok; Fahed Muqbil; Zakzok Jane Doe #1; Zakzok Jane Doe #2, Plaintiffs - Appellees,

v.Donald J. TRUMP, in his official capacity as President of the United States; United States Department of Homeland Security; United States Department of State; Office of the Director of National Intelligence; Chad Wolf, in his official capacity as Acting Secretary of Homeland Security; Michael R. Pompeo, in his official capacity as Secretary of State; Joseph Maguire, in his official capacity as Acting Director of National Intelligence; Mark A. Morgan, in his official capacity as Senior Official Performing the Functions and Duties of the Commissioner of U.S. Customs and Border Protection; Kenneth T. Cuccinelli, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; William P. Barr, in his official capacity as Attorney General of the United States, Defendants - Appellants.

Former National Security Officials; Muslim Bar Associations ; Muslim Law Student Associations; Cuny-Clear; Advocates for Youth; Bend the Arc: A Jewish Partnership for Justice ; Chicago Lawyers’ Committee for Civil Rights Under Law ; Freedom From Religion Foundation; Judge David L. Bazelon Center for Mental Health Law; Lambda Legal Defense and Education Fund; Mississippi Center for Justice; National Center for Lesbian Rights; National Urban League; People for the American Way Foundation; Southern Coalition for Social Justice; Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Amici Supporting Appellees.

No. 19-1990

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2020

Decided: June 8, 2020

ARGUED: Joshua Paul Waldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Mark William Mosier, COVINGTON & BURLING LLP, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, H. Thomas Byron III, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellants. Nimra H. Azmi, MUSLIM ADVOCATES, Washington, D.C.; Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C.; Lala R. Qadir, Jack Boeglin, Laura Dolbow, COVINGTON & BURLING LLP, Washington, D.C., for IAAB Appellees. Justin B. Cox, Atlanta, Georgia, Mariko Hirose, Linda Evarts, Kathryn Claire Meyer, New York, New York, Melissa Keaney, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, Fair Oaks, California; Max S. Wolson, NATIONAL IMMIGRATION LAW CENTER, Los Angeles, California; Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside, New York, New York, Cecillia D. Wang, Cody H. Wofsy, Spencer E. Amdur, San Francisco, California, David Cole, Daniel Mach, Heather L. Weaver, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C.; David Rocah, Deborah A. Jeon, Sonia Kumar, Nicholas Taichi Steiner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland, for IRAP Appellees. Faiza Patel, Harsha Panduranga, Brennan Center of Justice, NEW YORK UNIVERSITY SCHOOL OF LAW, New York, New York; Jethro Eisenstein, PROFETA & EISENSTEIN, New York, New York; Lena F. Masri, Gadeir Abbas, Justin Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C.; Robert A. Atkins, Liza Velazquez, Andrew J. Ehrlich, Steven C. Herzog, Meredith Borner, Luke J. O'Brien, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, for Zakzok Appellees. Harold Hongju Koh, Rule of Law Clinic, YALE LAW SCHOOL, New Haven, Connecticut; Phillip Spector, MESSING & SPECTOR LLP, Baltimore, Maryland, for Amici Former National Security Officials. Adeel A. Mangi, Sofia G. Syed, Abigail E. Marion, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York, for Amici Muslim Bar Associations, Muslim Law Student Associations, and Cuny-Clear. Lynne Bernabei, Alan R. Kabat, BERNABEI & KABAT, PLLC, Washington, D.C., for Amici Advocates for Youth, Bend the Arc: A Jewish Partnership for Justice, Chicago Lawyers’ Committee for Civil Rights under Law, Freedom from Religion Foundation, Judge David L. Bazelon Center for Mental Health Law, Lambda Legal Defense and Education Fund, Mississippi Center for Justice, National Center for Lesbian Rights, National Urban League, People for the American Way Foundation, Southern Coalition for Social Justice, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.

Reversed and remanded with instructions to dismiss by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee and Judge Richardson joined.

NIEMEYER, Circuit Judge:

This action — consisting of three separate actions with varying procedural histories that have been consolidated and that currently challenge the President's Proclamation 9645 imposing restrictions on the entry of foreign nationals from specified countries — is back before us for the third time, after having twice been addressed by the Supreme Court. The plaintiffs’ complaints allege that the Proclamation violates their rights under the Establishment Clause, as well as under other clauses of the Constitution, because it lacks a rational relationship to legitimate national security concerns and is motivated solely by anti-Muslim animus.

The government filed a motion to dismiss the plaintiffs’ complaints for failure to state a claim based mainly on the Supreme Court's recent decision in Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018), which reversed a preliminary injunction against the enforcement of Proclamation 9645 that had been issued on facts that are essentially the same as those alleged in the complaints before us. The Hawaii Court held that the government had "set forth a sufficient national security justification to survive rational basis review" and therefore that the plaintiffs had not demonstrated that they were likely to succeed on the merits of their claims. Id . at 2423.

The district court found Hawaii to be inapposite, concluding that Hawaii ’s holding was limited to the review of a preliminary injunction, where the question was whether the plaintiffs, without having yet had the opportunity to engage in discovery, had demonstrated that they were likely to succeed on the merits of their constitutional claims. The district court concluded therefore that Hawaii does not control here, where the question is whether the plaintiffs have plausibly stated a claim upon which relief can be granted. Taking the plaintiffs’ factual allegations in the light most favorable to them, the court held that the plaintiffs had put forth "factual allegations sufficient to show that the Proclamation [was] not rationally related to the legitimate national security and information-sharing justifications identified in the Proclamation [but] ... was motivated only by an illegitimate hostility to Muslims." (Emphasis added). It thus denied the government's motion to dismiss the plaintiffs’ constitutional claims.

Reviewing the district court's interlocutory order by virtue of its certification under 28 U.S.C. § 1292(b) and our order granting permission to appeal, we conclude that the district court misunderstood the import of the Supreme Court's decision in Hawaii and the legal principles it applied. Informed by Hawaii , we reverse and remand with instructions to dismiss the plaintiffs’ complaints.

I

A. Background

Shortly after taking office in January 2017, President Donald Trump issued Executive Order 13769, which restricted for 90 days the entry into the United States of foreign nationals from seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen — while the Secretary of Homeland Security conducted a review of the adequacy of information provided by all foreign governments about their nationals seeking to enter the United States. The enumerated countries had been previously identified by Congress or prior administrations as posing heightened terrorism risks. Soon thereafter, however, a district court in the State of Washington issued a nationwide injunction enjoining the enforcement of several provisions of the executive order, see Washington v. Trump , No. 17-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), and the Ninth Circuit denied the government's motion to stay the order pending its appeal, see Washington v. Trump , 847 F.3d 1151 (9th Cir. 2017) (per curiam).

Rather than challenge that decision further, the President issued a revised executive order — Executive Order 13780 — which again directed the Secretary of Homeland Security to "conduct a worldwide review to identify whether, and if so what, additional information [would] be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the [Immigration and Nationality Act ("INA") ] ... in order to determine that the individual is not a security or public-safety threat." Exec. Order No. 13780, 82 Fed. Reg. 13209, § 2(a) (Mar. 6, 2017). This executive order suspended for 90 days the entry of foreign nationals from six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — with the stated purpose...