United States District Court, D. Massachusetts
Arghavan Louhghalam et al. Plaintiffs,
Donald J. Trump, President of the United States, et al. Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Court was initially asked 1) to issue a writ of habeas corpus
on behalf of by Arghavan Louhghalam and Mazdak Pourabdollah
Tootkaboni, lawful permanent residents who were detained at
Boston Logan International Airport (“Logan”) for
several hours upon arrival from an academic conference
outside the United States and 2) to declare unlawful
Executive Order 13, 769, promulgated by the President of the
the evening on January 28, 2017, United States District Judge
Allison D. Burroughs and United States Magistrate Judge
Judith G. Dein held a hearing on a motion of Louhghalam and
Tootkaboni for a temporary restraining order. Following that
hearing, Judge Burroughs and Magistrate Judge Dein entered a
temporary restraining order (“TRO”) that,
inter alia, prohibits the detention and/or removal
of individuals with approved refugee applications who would
be legally admitted to the United States in absence of the
Executive Order. That TRO is set to expire on Sunday,
February 5, 2017.
entry of the TRO a flurry of activity has resulted in the
filing of an amended complaint wherein five other Iranian
nationals and Oxfam America, Inc. are named as additional
plaintiffs and the allowance of a motion by the Commonwealth
of Massachusetts and the University of Massachusetts to
intervene as plaintiffs. Now pending before this session is
the informal motion of all of the plaintiffs to continue in
force the subject TRO which defendant opposes. Oral argument
on that motion was heard earlier today.
petitioners Tootkaboni and Louhghalam are Iranian nationals,
Muslim and lawful permanent residents of the United States.
Both are currently employed as Associate Professors at the
University of Massachusetts-Dartmouth. They were each
detained for nearly four hours at Logan Airport on January
28, 2017, without access to counsel, after returning from an
academic conference outside the country.
five other individual plaintiffs are Iranian nationals and
Muslim. Three of them, Babak Yaghoubi Moghadam, his sister,
Fatemeh Yaghoubi Moghadam, and Ali Sanie are also lawful
permanent residents. Plaintiffs Zahrasadat Mirrazi Renani and
Leily Amirsardary are in the United States on valid F-1
student visas. Plaintiff Oxfam America Inc. is a subsidiary
of a worldwide non-profit organization that promotes policy
reform in the United States and abroad with respect to global
in this case are President of the United States, Donald J.
Trump, United States Customs and Border Protection
(“CBP”), Kevin K. McAleen, the Acting
Commissioner of the CBP, William Mohalley, the Boston Field
Director of the CPB, and the Department of Homeland Security
and its Secretary, John Kelly. Each individual defendant is
sued in his official capacity.
The Executive Order
January 27, 2017, the President of the United States Donald
J. Trump, issued Executive Order No. 13, 769 entitled
“Protecting the Nation from Foreign Terrorist Entry
into the United States” (“EO”). The EO
directs changes to the policy and process of admitting
non-citizens into the United States purportedly to protect
national security and to provide a period of review for
relevant agencies to evaluate current procedures and to
propose and implement new procedures.
changes in immigration procedure relevant to this action are
as follows. The EO suspends for 90 days entry of immigrants
and non-immigrants from seven countries: Iraq, Iran, Libya,
Somalia, Sudan, Syria and Yemen. Exec. Order 13, 769 §
3(c). The EO also suspends, for 120 days, the United States
Refugee Admission Program (“USRAP”). Id.
§ 5(b). The order directs, after the suspension on USRAP
ends, that the Secretary of State prioritize applicants 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.
February 1, 2017, White House counsel issued a clarification
to the Acting Secretary of State, the Attorney General and
the Secretary of Homeland Security that Sections 3(c) and
3(e) do not apply to lawful permanent residents.
The Immigration and Nationality Act
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101 et seq., was originally enacted in 1952
and has been amended several times, including in 1996 by the
Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”). The INA governs immigration,
naturalization, refugee assistance and removal procedures and
defines the circumstances that govern the admission of aliens
into the United States.
relevant provision of the INA provides that:
Whenever the President finds that the entry of any aliens or
of any class of aliens into the United States would be
detrimental to the interests of the United States, he may by
proclamation, and for such period as he shall deem necessary,
suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f).
described above, petitioners Tootkaboni and Louhghalam filed
a writ of habeas corpus on January 28, 2017. In the middle of
a weekend night, following a hearing, Judge Burroughs and
Magistrate Judge Dein, the assigned emergency district and
magistrate judges, respectively, entered a TRO preventing
individuals subject to the EO from being detained or removed
upon arrival at Logan. The TRO also directed petitioners to
file an amended complaint and scheduled a hearing to occur
prior to the expiration of that order. The matter was
randomly assigned to this judicial officer who, accordingly,
scheduled a hearing with respect to the continuance of the
Continuance of the TRO
order to obtain a preliminary injunction or temporary
restraining order, the moving party must establish 1) a
reasonable likelihood of success on the merits, 2) the
potential for irreparable harm if the injunction is withheld,
3) a favorable balance of hardships and 4) the effect on the
public interest. Jean v. Mass. State Police, 492
F.3d 24, 26-27 (1st Cir. 2007); Quincy Cablesys., Inc. v.
Sully's Bar, Inc., 640 F.Supp. 1159, 1160 (D. Mass.
1986). Of these factors, the likelihood of success on the