This lawsuit challenges President Trump’s Jan. 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 chronicles the government's attempts to resist disclosure of documents about this program.

The original complaint was filed Jan. 23, 2017 (four days before the EO was issued). On Jan. 26 (the day before the EO was issued), the court scheduled a status conference for May 2, 2017.

The amended complaint, filed Feb. 1, 2017, alleged that U.S. Citizenship and Immigration Services (USCIS) interpreted the Jan. 27 EO to mandate suspending 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 Clause, and Due Process Clause of the Constitution. 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" suspension of naturalization and LPR (adjustment of status) applications. The plaintiffs and their counsel, including attorneys from the ACLU, Northwest Immigrant Rights Project, and private firms, filed the case in the U.S. District Court for the Western District of Washington, where it was assigned to Judge John C. Coughenour.

The plaintiffs were both Muslims. One was a 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 filed a class certification motion on Feb. 9. First, plaintiffs argued that CAARP and the EO were unlawfully delaying or denying the immigration applications of thousands of people nationwide. 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).

Defendants filed a motion to transfer on Mar. 2. Defendants noted that USCIS had already granted the first plaintiff's naturalization application on Feb. 22. Because the second plaintiff lived in North Dakota, defendants requested that the case be transferred to the District of North Dakota.

Under pressure because of adverse developments in other litigation, including Washington v. Trump, in the 9th Circuit, on Mar. 6, the President rescinded the Jan. 27 EO and replaced it with a narrower one, Executive Order 13780.

On Mar. 21, plaintiffs responded to defendants' Mar. 2 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. Plaintiffs also announced that their second amended complaint would add more plaintiffs in the Western District of Washington. Defendants in turn replied on Mar. 23.

Plaintiffs filed a second amended complaint on Apr. 4, arguing that the second EO 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.

Plaintiffs followed this with an Apr. 10 motion to amend their Feb. 9 class certification motion, retaining the same two proposed classes but adding the new plaintiffs as additional class representatives. On Apr. 11, Judge Coughenour dismissed as moot the original class certification motion and replaced it with the amended motion. Also on Apr. 11, Judge Coughenour lifted the stay on defendants' motion to transfer venue, and then denied the motion. Judge Coughenour noted that, although the first plaintiff had recently been approved for naturalization (after waiting for three and a half years), additional plaintiffs who resided in the Western District of Washington had just been added to plaintiffs' amended complaint. Consequently, the government could not argue that no plaintiffs with viable claims remained in the District.

Defendants moved to dismiss on Apr. 18. They argued that, first, no case or controversy existed because plaintiffs had no interest in adjudication of their applications. Second, they argued that plaintiffs lacked standing under both the EO and the Naturalization Clause. 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). Plaintiffs responded on May 8, and defendants replied on May 12.

On May 10, defendants responded to plaintiffs' amended class certification motion. They argued that it was impossible to determine whether CAARP or an "extreme vetting" policy had delayed any case without examining the specific facts of that case. Plaintiffs replied on May 19, maintaining that the case was about the legality of CAARP as a general policy and thus that a class action was appropriate.

On June 13, the case was reassigned to Judge Richard A. Jones. On June 21, Judge Jones granted plaintiffs' Apr. 10 class certification motion, and granted in part and denied in part defendants' Apr. 18 motion to dismiss. 2017 WL 2671254 (W.D. Wash. June 21, 2017). Judge Jones noted that there was a case or controversy because 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.

Judge Jones certified two nationwide classes of plaintiffs: a "naturalization
class" of individuals whose naturalization applications had or would be subject to CAARP and were not or would not be adjudicated within six months of filing, as well as an "adjustment class" of individuals whose applications for adjustment of status had or would be subject to CAARP and were not or would not be adjudicated within six months of filing.

Although Judge Jones 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 stood.

On July 5, defendants filed a motion for reconsideration of 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. Plaintiffs responded on July 13, arguing that CAARP created a common injury and that the class certification was rational. Defendants replied July 18.

The parties filed a joint status report and discovery plan on July 28. Judge Jones, on Aug. 2, scheduled the trial for Sept. 24-28, 2018, and set a discovery and briefing schedule.

On Aug. 16, Judge Jones denied defendants' motion for reconsideration of his class certification order. 2017 U.S. Dist. LEXIS 130836 (W.D. Wash. Aug. 16, 2017). He explained that defendants had failed to identify error in his order, but instead simply had tried to re-argue their position.

On Oct. 19, Judge Jones granted in part and denied in part plaintiffs' motion of Sept. 28 to compel production of documents. 2017 U.S. Dist. LEXIS 173374 (W.D. Wash. Oct. 19, 2017). He ordered defendants to disclose class members' identities, as well as certain classified documents or a privilege log. On Nov. 2, defendants moved for a reconsideration; plaintiffs responded on Nov. 14.

On Nov. 20, the parties reported that they were at an impasse as to the appropriate scope of discovery related to the first and second EOs. The parties sought the Court's guidance on this issue, and planned to file a joint motion to compel briefing by Dec. 8.

On Nov. 28, Judge Jones denied defendants' Nov. 2 reconsideration of his Oct. 19 order to compel production of documents. Judge Jones reaffirmed his finding that the balance of parties' needs weighed in favor of disclosure, because the plaintiffs had requested nothing more than names of potential class members. Again on Apr. 11, 2018, Judge Jones compelled production of documents by Apr. 25, this time criticizing defendants for the delay:

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. The Court has no patience for Defendants’ apparent disregard for the discovery process and for its attorneys’ inappropriate actions in furthering and participating in such behavior.

In response, defendants appealed to the Ninth Circuit, seeking vacatur of the District Court's production orders, and in the District Court filed an Apr. 20 emergency motion for stay pending appellate review. Defendants argued that the law enforcement privilege protected the information sought. Plaintiffs opposed this motion on Apr. 23. The Ninth Circuit opened a new docket (18-71171).

Judge Jones issued an Apr. 24 order (after vocally rejecting defendants' request for an Apr. 23 one), interpreting defendants' emergency motion as in fact a motion to consider the Court's Apr. 11 order, which Judge Jones declined. Judge Jones ordered instead that rather than providing case-by-case determinations to plaintiffs, defendants could provide a sample of them instead to the Court by May 1. Defendants then asked the Ninth Circuit to stay the emergency petition in the meantime while defendants provided this sample to the District Court.

As of May 2018, the parties continue to dispute the scope of discovery and proposed deadlines.

This case is ongoing and discovery is underway, with a trial set for Sept. 2018.

Ava Morgenstern - 05/05/2018


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