On January 31, 2017, the Arab American Civil Rights League and seven of its individual members filed this lawsuit in the U.S. District Court for the Eastern District of Michigan. The plaintiffs sued President Trump, the Department of Homeland Security, and U.S. Customs and Border Protection under the Declaratory Judgment Act, the Administrative Procedures Act, and the Religious Freedom Restoration Act, claiming that President Trump’s Executive Order of January 27, 2017, violated these statutes as well as their Fifth Amendment procedural and substantive due process and equal protection rights. They also claimed the Executive Order violates the First Amendment’s Establishment Clause by giving preference to Christian over Muslim refugees.
The plaintiffs, represented by private attorneys, included ACRL members who were Muslim lawful permanent residents (LPRs) from Yemen and Syria, countries whose nationals were banned from entering the United States by the challenged Executive Order. On Jan. 27, some of the plaintiffs were outside the United States when the Executive Order was issued. They were unable to board flights to return to their homes and families in Detroit, or they feared being denied flights to do so. Other plaintiffs were inside the United States and feared that they would be denied re-entry if they left, or were unable to petition for immigration status for their family members abroad.
The plaintiffs asked the court to strike down the Executive Order, enjoining the defendants from detaining or stopping individuals solely on its basis, and to declare unlawful the defendants’ actions preventing the plaintiffs from traveling to the United States.
The lawsuit was assigned to Judge Victoria A. Roberts.
On February 2, 2017, the plaintiffs filed a motion for a temporary restraining order, seeking an order that "prohibits the denial of entry into the US of legal permanent residents and those with valid immigrant visas on the basis of [the] January 27, 2017 Executive Order." Upon the filing of the motion, the Court held a telephone conference during which the U.S. noted that the White House's February 1, 2017 memorandum clarified that the Executive Order does not apply to U.S. lawful permanent residents. After the hearing, defendants filed a memorandum setting forth this clarification.
Based on the government's clarification, on February 2, 2017, the Court entered a permanent injunction barring the United States from applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against lawful permanent residents of the United States. This injunction protected four of the named plaintiffs, who are lawful permanent residents, as well as all other lawful permanent residents of the United States who are similarly situated. The injunction did not apply to the remainder of the named plaintiffs, who sought other relief. The Court scheduled a hearing on further relief for February 13.
On February 6, 2017, plaintiffs filed an amended complaint, adding the ACLU of Michigan as counsel and several new plaintiffs. That same day, the defendants filed a motion to dissolve the permanent injunction, arguing that both parties agreed that the Executive Order did not apply to lawful permanent residents and therefore there was no case or controversy. On February 7, 2017, the plaintiffs filed an opposition to the defendants' motion to dissolve the injunction. The plaintiffs argued that, because the government had shifted its position on whether the Executive Order applied to LPRs and could continue to shift its position at any time, there remained a live case and controversy. Defendants' reply, filed February 8, 2017, added the argument that the injunction was overbroad.
On February 9, the plaintiffs withdrew their February 2 motion for a TRO for emergency relief. The plaintiffs cited changed circumstances created by the entry of the nationwide TRO in
State of Washington v. Trump. Some of the plaintiffs had already entered the United States and the rest planned to enter within the next several days. However, the plaintiffs continued to pursue a permanent injunction guaranteeing them the ability to travel outside the country and re-enter in the future.
There were then several procedural updates. On Feb. 10, the defendants asked the court to defer ruling on the defendants' Feb. 6 motion to dissolve the injunction. On Feb. 13, defendants submitted their update, arguing that the court lacked jurisdiction to rule on the injunction because there was no live case or controversy. Defendants again argued that both parties agree that the order did not apply to LPRs, and dismissed plaintiffs' concern that LPRs from the seven countries remained at risk of being denied entry if they left the U.S. On Feb. 14, the court ordered the plaintiffs to respond to the defendants' update, and granted several motions to file amicus briefs. The plaintiffs filed their response to the defendants' status update on Feb. 20. The plaintiffs argued that the court should hold the defendants' motion in abeyance, or deny it if the court does rule on the motion. Plaintiffs argued that the government "offers no credible assurance that this voluntary cessation [of applying the EO to LPRs] will be continued in the future." Further, the government's pending new EO would lead to events that would likely supersede any action taken by the court. On Feb. 22, the plaintiffs updated their response with a declaration from an LPR from Sudan.
The U.S. had appealed the temporary injunction in Washington v. Trump, but the 9th Circuit declined to stay that injunction while the appeal proceeded, and expressed considerable skepticism about the Executive Order's legality in the opinion denying a stay. The federal government responded on Mar. 6, 2017, when the President rescinded the Jan. 27 Executive Order and replaced it with a narrower one,
Executive Order 13780. On the same day, the government filed notice of the new EO in this case. Plaintiffs then filed notice of their intent to file an amended complaint in light of the new EO.
Plaintiffs filed that amended complaint on Mar. 16, arguing that although the Mar. 6 Executive Order was intended to bolster the President's policy against legal challenges, the new EO's purpose suffers the same problem as the old EO--it is discriminatory. Plaintiffs also filed a motion to expedite discovery and a concurrent motion to expedite briefing. However, since the new EO did definitively except lawful permanent residents from its scope, that same day, the plaintiffs did file a notice of voluntary dismissal on behalf of the lawful permanent resident plaintiffs. Finally, plaintiffs asked the court to deny defendants' motion to dissolve the prior injunction as moot.
On Mar. 20, defendants renewed their motion to vacate the permanent injunction; the court agreed with the plaintiffs that this motion was moot, because the new EO rendered the court's original injunction ineffective. The court explained, "[a]n order vacating or dissolving the injunction is unnecessary and would be inappropriate."
There were then procedural updates in light of the new EO. On Mar. 21, the court granted in part the plaintiffs' motion for expedited briefing of their motion for expedited discovery. The court ordered the defendants' response to the plaintiffs' motion for expedited discovery by March 24 and the plaintiffs' reply by March 28. On Mar. 24, defendants filed their brief in opposition to plaintiffs' motion for expedited discovery, to which the plaintiffs responded on Mar. 27. The court denied the plaintiffs' motion for expedited discovery without prejudice on Mar. 31, stating, "[i]f this case proceeded to hearing on a motion for preliminary injunction, this Court believes it would have sufficient information available to it to make a decision on the merits...Accordingly, Plaintiffs have not shown that their need for expedited discovery outweighs the prejudice to Defendants."
That same day, the court granted the defendants' motion for an extension of time to answer the amended complaint.
On Apr. 17, defendants filed a motion to dismiss the second amended complaint. The motion argued that the plaintiffs' claims were not justiciable because the individual plaintiffs had not demonstrated injury as a result of the new EO and the organizational plaintiffs lacked associational standing. The motion further argued that the plaintiffs' claims failed on the merits because the INA grants the president the authority to create temporary entry-suspension provisions.
Several procedural developments ensued. On Apr. 21, plaintiffs responded to defendants' motion to extend time for entry of a scheduling order until after the resolution of the motion to dismiss; plaintiffs argued that limited discovery should still proceed so that they can move forward with seeking the preliminary injunction. (Plaintiffs also responded to the motion to dismiss on May 8.) On May 11, Judge Roberts denied defendants' motion to extend time, allowing a limited discovery process to begin. In the order, Judge Roberts noted that the defendants' motion to dismiss will likely not be fully dispositive of the case and that at least one plaintiff is likely to have standing. The court also entered a scheduling order; initial disclosures--including of the memo about the travel ban Rudy Giuliani wrote prior to the President's inauguration--are due by May 19. However, as of May 26, the government had still not produced the Giuliani memo. Plaintiffs filed a motion to compel defendants to turn over the document. Defendants responded on June 6. In their response defendants claimed that the Giuliani memo is "categorically irrelevant" to the legal issues involved in the suit. Defendants also claimed that plaintiffs had not shown a heightened need or inability to obtain the document from other sources.
Additionally, defendants were to respond to the remaining discovery requests by June 2. Meanwhile, the plaintiffs responded to the motion to dismiss on May 8, and the government replied on May 22. A hearing on the motion to dismiss is set for June 6.
However on May 31, defendants also filed a motion to stay proceedings pending the Supreme Court's "likely consideration" of the 4th Circuit's decision in IRAP v. Trump. Defendants also requested a two week extension of the June 2 deadline to turn over the remaining discovery documents. Additionally, defendants are also allowed to respond to plaintiffs motion to compel by June 5. On June 1, the hearing on the motion to dismiss was rescheduled to June 13. Plaintiffs responded to the defendants' motion to stay on June 2, arguing that "[t]his last-minute motion to stay is just the latest attempt by Defendants to avoid responding to the narrow discovery requests approved by the Court...The Court should deny the new motion to stay, and resolve the motion to dismiss." The defendants replied on June 6. On June 9, the court granted the motion to stay proceedings. The order stated that while the case in the Supreme Court will not resolve all issues in the case here, it would "settle some issues and simplify others" while also providing "the legal standard for reviewing the Executive Order under the Establishment Clause." Further, the order stated that the consequences of a stay for the plaintiffs will not be as drastic as the plaintiffs indicated.
Several organizations and individuals filed documents supporting the plaintiffs on May 23. Muslim Advocates, American Muslim Health Professionals, Network of Arab-American Professionals, and Muppies, Inc. filed an amicus brief opposing the government's motion to dismiss. A number of constitutional law professors filed a separate amicus brief opposing the motion to dismiss. Professor Lila Abu-Lughod filed a declaration.
This case is ongoing.
Ava Morgenstern - 02/15/2017
Julie Aust - 02/24/2017
Jamie Kessler - 06/06/2017
Virginia Weeks - 06/09/2017
compress summary
