This lawsuit challenges President Trump's January 27, 2017 Executive Order (EO) suspending entry into the United States of citizens or nationals of Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya. This case also challenges the government's Controlled Application Review and Resolution Program (CARRP), alleging it was a precursor to the EO's "extreme vetting" of Muslims, and chronicled the government's attempts to resist disclosure of documents about this program.
The original complaint was filed on January 23, 2017, (four days before the first Travel Ban EO was issued) in the U.S. District Court for the Western District of Washington (in Seattle). On January 26, the court scheduled a status conference for May 2, 2017.
The amended complaint, filed February 1, 2017, alleged that U.S. Citizenship and Immigration Services (USCIS) interpreted the January 27 EO to mandate suspension of adjudication of all pending petitions, applications, or requests from citizens or nationals of the seven banned countries, and that this suspension violated the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the Establishment Clause, Equal Protection, and Due Process. The plaintiffs also alleged that the EO had or would expand USCIS's Controlled Application Review and Resolution Program (CARRP), which they argued imposed extra-statutory rules and criteria on Muslim applicants to delay and deny immigration benefits to which applicants were entitled.
The plaintiffs sought declaratory and injunctive relief. Additionally, the plaintiffs sought class certification for all others affected by the "Muslim ban" and by the "extreme vetting" that the plaintiffs alleged resulted in a suspension of review of applications for naturalization and LPR (Lawful Permanent Residence). The plaintiffs were represented by attorneys from the ACLU, the Northwest Immigrant Rights Project, and private law firms. The case was assigned to District Judge John C. Coughenour.
The plaintiffs were both Muslims. One was a Somali national, refugee, and LPR who had been waiting over three and a half years for adjudication of his naturalization application. The other was an Iranian nonimmigrant visa holder who had been waiting three years for adjudication of his LPR application. The plaintiffs alleged that they met all INA statutory criteria for the successful adjudication of their respective applications, but nevertheless that USCIS had suspended the adjudication of their applications under CARRP or its "extreme vetting" successor program.
The plaintiffs moved for class certification on February 9, 2017. First, the plaintiffs argued that CAARP and the EO were unlawfully delaying or denying the immigration applications of thousands of people nationwide. The plaintiffs then proposed two nationwide classes: one class of naturalization applicants (LPRs applying for citizenship and subject to CAARP or its "extreme vetting" successor program, whose applications had not or would not be adjudicated within six months of filing), and one class of adjustment of status applicants (the same, except for persons applying for LPR status).
The government filed a motion to transfer on March 2, 2017. They noted that USCIS had already granted the first plaintiff's naturalization application on February 22. Because the second plaintiff lived in North Dakota, defendants requested that the case be transferred to the District of North Dakota.
Following developments in other litigation, including
Washington v. Trump, in the Ninth Circuit, on March 6, the President rescinded the January 27 EO and replaced it with a narrower one,
Executive Order 13780 (EO-2).
On March 21, 2017, plaintiffs responded to the government’s motion to transfer, arguing that the first plaintiff should remain as a proposed class representative because USCIS had delayed his application for so long, despite its recent approval. The plaintiffs also announced that their second amended complaint would add more plaintiffs in the Western District of Washington.
The plaintiffs filed a second amended complaint on April 4, 2017, arguing that EO-2 had essentially the same effect on plaintiffs as the first EO because it targeted almost the same countries and allowed CAARP or a successor "extreme vetting" program to continue. The second amended complaint also listed three additional Muslim plaintiffs from Libya, Iraq, and Pakistan who had all waited over one year for adjudication of their immigration applications.
On April 10, 2017, the plaintiffs moved to amend their February 9 motion for class certification, retaining the same two proposed classes but adding the new plaintiffs as additional class representatives. On April 11, Judge Coughenour dismissed as moot the original class certification motion and replaced it with the amended motion. Judge Coughenour also lifted the stay on defendants' motion to transfer venue and denied the motion. The court noted that, although the first plaintiff had recently been approved for naturalization, additional plaintiffs who resided in the Western District of Washington had just been added to the plaintiffs' amended complaint. Consequently, the government could not argue that there were no longer plaintiffs with viable claims in the District.
The government moved to dismiss on April 18. It argued that, first, no case or controversy existed because the plaintiffs had no interest in adjudication of their applications. Second, it argued that the plaintiffs lacked standing under both the EO and the Naturalization Clause. Third, defendants also alleged that plaintiffs had not stated sufficient facts that the EO or "extreme vetting" caused their application delays or denials. Finally, defendants argued that plaintiffs had not established viable claims that CAARP violated Due Process, INA, or APA (as a substantive agency rule or final agency action).
On June 13, the case was reassigned to District Judge Richard A. Jones. On June 21, District Judge Jones granted the plaintiffs' April 10 class certification motion, and granted in part and denied in part the defendants' April 18 motion to dismiss. District Judge Jones held that there was a case or controversy because the plaintiffs sought both an injunction on adjudication of their applications as well as a declaration that CAARP and any "extreme vetting" successor program was unlawful. Although the district judge dismissed plaintiffs' Due Process claim for the class alleging procedural violations in adjustment of status (because adjustment does not present a protected property interest such as naturalization does), all other claims were allowed to proceed. 2017 WL 2671254.
Judge Jones certified two nationwide classes of plaintiffs: a "naturalization
class":
A national class of all persons currently and in the future (1) who have or will have an application for naturalization pending before USCIS, (2) that is subject to CARRP or a successor "extreme vetting" program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.
And an "adjustment class":
A national class of all persons currently and in the future (1) who have or will have an application for adjustment of status pending before USCIS, (2) that is subject to CARRP or a successor "extreme vetting" program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.
On July 5, 2017, the government filed a motion for reconsideration of District Judge Jones' June 21 order, arguing that plaintiffs could not show commonality in how CAARP had injured them and that the nationwide class certification and six-month adjudication deadline were erroneous. This was later denied on August 16, 2017. The court explained that the government had failed to identify an error in his order but instead simply had tried to re-argue the same position. 2017 U.S. Dist. LEXIS 130836.
The parties filed a joint status report and discovery plan on July 28, 2017. District Judge Jones scheduled the trial for Sept. 24-28, 2018 and set a discovery and briefing schedule.
From October 2017 through April 2018, the parties engaged in a number of disputes over discovery. This resulted in an order to compel production of documents issued by District Judge Jones on April 11, 2018. In this order, the court criticized the government’s intransigence during the discovery process, writing:
The Court has repeatedly explained to the Government that orders from the federal bench are mandatory, not voluntary...The executive branch does not stand alone in the federal system; the Government may not usurp the judicial branch and decide for itself when or if it will produce documents.
In response, the government appealed to the Ninth Circuit, seeking vacatur of the district court's production orders, and, on April 20, filed an emergency motion in the district court for a stay of discovery pending appellate review. The Ninth Circuit opened a new docket (18-71171).
District Judge Jones issued an April 24, 2018, order interpreting defendants' emergency motion as in fact a motion to consider the court's April 11 order, which Judge Jones declined. The district court ordered that rather than providing case-by-case determinations to plaintiffs, defendants could provide a sample of them instead to the court by May 1. 2018 WL 1737939. Defendants then asked the Ninth Circuit to stay the emergency petition in the meantime while defendants provided this sample to the district court.
On May 10, 2018, the district court granted the government’s motion for reconsideration of the April 11 order. This allowed the government to produce the class list under an attorney eyes only provision. 2018 WL 2159784. Later, the court granted the parties' stipulated order requesting that the district revise its protective order to permit plaintiffs’ counsels’ administrative and technical staff to also view and access the names, Alien numbers, and application filing dates of unnamed class members.
The parties continued to dispute the scope of discovery and proposed deadlines throughout 2018. A bench trial was scheduled for July 2019, but on January 14, 2019, the court granted the defendants' motion to stay all deadlines in preparation for trial due to the lapse in appropriations funding for the DOJ. On February 14, 2019, the district court ordered the stay of deadlines lifted and for discovery to recommence.
In October 2019, the district court set a bench trial for August 2020. But because of the time-consuming nature of the discovery process, the parties filed a joint motion to temporarily suspend the case schedule in March 2020. The court granted this and struck the August 17, 2020, trial date. Discovery continued through much of 2020. On December 18, 2020, the court set a March 2021 deadline for plaintiffs to file a motion and brief for summary judgment and an April deadline for defendants to file their cross-motion and brief.
Despite President Biden’s revocation of the Travel Ban EOs on Inauguration Day (January 20, 2021), the case continued. The district court reset the summary judgment deadlines on February 25, 2021, with all summary judgment motions and replies due by July 2, 2021. On April 5, 2021, the court substituted President Biden for former President Trump as a defendant. It appears that the plaintiffs moved for summary judgment on March 25, 2021, and that the government filed its cross-motion for summary judgment on May 4, 2021, but this is difficult to confirm as these filings are sealed. As of July 23, 2021, the parties were disputing which filings related to the summary judgment briefs the district court should classify as “highly sensitive documents.”
This case is ongoing.
Ava Morgenstern - 05/05/2018
Eva Richardson - 01/31/2019
Lily Sawyer-Kaplan - 11/14/2019
Esteban Woo Kee - 08/07/2021
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