Case 1:17-cv-00116-LMB-TCB Document 18 Filed 02/01/17 Page 1 of 2 PageID# 99

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)
Petitioners, )
)
v. ) Civil Action No. 1:17-cv-116
)
DONALD TRUMP, President of the United )
States, et al., )
)
Respondents. )

THE COMMONWEALTH OF VIRGINIAS

MOTION FOR THE ISSUANCE OF A RULE TO SHOW CAUSE

The Commonwealth of Virginia, by counsel and pursuant to Federal Rule of Civil

Procedure 70(e), and for the reasons stated in the accompanying brief, moves this Court to

require respondents to show cause why they are not in contempt of this Courts temporary

restraining order entered on the evening of January 28, 2017. (Dkt. 3.)

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

By: /s/
Stuart A. Raphael (VSB No. 30380)
Solicitor General

Office of the Attorney General

202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile
sraphael@oag.state.va.us

1
Case 1:17-cv-00116-LMB-TCB Document 18 Filed 02/01/17 Page 2 of 2 PageID# 100

Mark R. Herring
Attorney General of Virginia

Trevor S. Cox (VSB No. 78396)

Deputy Solicitor General
tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194)

Assistant Attorney General
mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

CERTIFICATE OF SERVICE

I certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court
using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of
record for Petitioners and Respondents.

By: /s/
Stuart A. Raphael

2
Case 1:17-cv-00116-LMB-TCB Document 18-1 Filed 02/01/17 Page 1 of 2 PageID# 101

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)
Petitioners, )
)
v. ) Civil Action No. 1:17-cv-116
)
DONALD TRUMP, President of the )
United States; U.S. DEPARTMENT OF )
HOMELAND SECURITY; U.S. CUSTOM )
AND BORDER PROTECTION; JOHN )
KELLY, Secretary of DHS; KEVIN K. )
MCALEENAN, Acting Commissioner of )
CBP; and WAYNE BIONDI, Customs )
and Border Protection (CBP) Port )
Director of the Area Port of )
Washington, Dulles. )
)
Respondents. )

RULE TO SHOW CAUSE

THIS MATTER comes before the Court on the motion of

Intervenor Plaintiff, the Commonwealth of Virginia, for the

issuance of a rule to show cause why Respondents should not be

held in contempt of this Courts temporary restraining order

(TRO) (Dkt. 3).

IT APPEARING TO THE COURT that the TRO may not have been

complied with, it is hereby

ORDERED that Respondents show cause, in writing, by no

later than 5 p.m. on February 7, 2017, that they are not in

contempt of the TRO. Respondents submission must include sworn

statements addressing, at a minimum: (1) the time on January 28,

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Case 1:17-cv-00116-LMB-TCB Document 18-1 Filed 02/01/17 Page 2 of 2 PageID# 102

2017 that they received actual notice of the TRO in this case

and the TRO in Darweesh v. Trump, No. 1:17-cv-480 (E.D.N.Y. Jan.

28, 2017); (2) the number of air passengers on January 27, 28,

and 29 arriving at Dulles International Airport with lawful

permanent residence status who were removed from the United

States, both before and after receipt of actual notice of the

TRO; (3) whether any such arrivals were denied prompt access to

counsel in light of reports that lawyers were refused such

access and there appear to be no reported cases of any such

arriving passenger being granted such access; and (4) the name

and title of all government officials, if any, who instructed

CBP personnel not to comply with the TRO.

Date: _______________
Judge Leonie M. Brinkema
United States District Judge

Alexandria, Virginia

2
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 1 of 9 PageID# 103

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)
Petitioners, )
)
v. ) Civil Action No. 1:17-cv-116
)
DONALD TRUMP, President of the United )
States, et al., )
)
Respondents. )

BRIEF IN SUPPORT
OF THE COMMONWEALTH OF VIRGINIAS
MOTION FOR THE ISSUANCE OF A RULE TO SHOW CAUSE

Mark R. Herring Stuart A. Raphael (VSB No. 30380)

Attorney General of Virginia Solicitor General

Trevor S. Cox (VSB No. 78396) Office of the Attorney General

Deputy Solicitor General
tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194)
Assistant Attorney General
mmcguire@oag.state.va.us
202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile
sraphael@oag.state.va.us

Counsel for Commonwealth of Virginia

February 1, 2017
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 2 of 9 PageID# 104

The Commonwealth of Virginia respectfully requests the issuance of a rule to show cause

why respondents should not be held in contempt of this Courts temporary restraining order

(TRO) entered on the evening of January 28, 2017. Contemporary news reports and first-hand

accounts indicate that officials of respondent Customs and Border Protection (CBP) did not

comply with the Courts directive in paragraph (a) that respondents shall permit lawyers access

to all legal permanent residents being detained at Dulles International Airport. Moreover,

because such access was not provided and respondents have not disclosed, despite request,

whether any such persons were removed from the United States after they knew of the TRO, it

cannot be determined whether respondents complied with the prohibition on such removal in

paragraph (b). The Commonwealth has attempted since Sunday, January 29, to obtain that

information, but respondents have not answered. Under these circumstances, the Court should

require that respondents demonstrate their compliance with the TRO and show cause why they

are not in contempt.

STATEMENT OF FACTS

On the afternoon of Friday, January 27, 2017, President Trump issued an Executive

Order entitled Protecting the Nation From Foreign Terrorist Entry Into the United States.

(Dkt. 7-1.) Section 3(c) of the Executive Order, among other things, suspends for 90 days entry

of all immigrants and nonimmigrants from seven majority-Muslim countries: Iran, Iraq, Libya,

Somalia, Sudan, Syria, and Yemen. 1 Section 3(e) and (f) contemplate expanding the list of

banned countries based on future recommendations by the Secretary of Homeland Security.

Section 3(g) provides that the Secretaries of State and Homeland Security may, on a case-by-

1
The order exempts persons traveling on diplomatic visas, North Atlantic Treaty Organization
visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas.

1
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 3 of 9 PageID# 105

case basis, and when in the national interest, issue visas or other immigration benefits to

nationals of countries for which visas and benefits are otherwise blocked. The Executive Order

restricts entry by immigrants from the banned countries who have lawful permanent residence

(green card) status in the United States, as well as nonimmigrants traveling on student or work

visas (e.g., B-1, H-1B, L-1, O, F-1, F-2, J-1), and their family members traveling on authorized

visas (e.g., B-2, J-2, F-2).

Because the Executive Order was issued on a Friday afternoon without prior notice,

numerous persons from the seven banned majority-Muslim countries had already commenced

their travel to the United States in reliance on their U.S. green card or a valid student or work

visa, unaware of the Executive Order. Beginning Friday evening and continuing over the

weekend, hundreds of people appeared at international airports throughout the United States,

expecting the arrival of their friends and loved ones, only to discover that those arriving

passengers were being detained incommunicado by CBP. This led to spontaneous protests and

demonstrations at airports throughout the United States by persons demanding that the detainees

be allowed access to the many lawyers who had also gathered at the airports to provide pro bono

legal assistance to the detainees and their relatives. 2

Petitioners in this case filed their complaint on the evening of Saturday, January 28, on

behalf of two travelers from Yemen and sixty John Doe travelers who likewise had arrived

with valid credentials but had been detained by CBP at Dulles.

2
E.g., Protests Erupt at Airports Following Trump Travel Ban, N.Y. Times (Jan. 29, 2017, 2:12
A.M.), https://goo.gl/pKOHoR; Elise Viebeck and Michael Laris, Hundreds of lawyers descend
on airports to offer free help after Trumps executive order, The Washington Post (Jan. 29,
2017), https://goo.gl/AiGZJ3; Betsy Woodruff, Trumps Border Patrol Defies Judge, U.S.
Senator at Dulles Airport as His First Constitutional Crisis Unfolds, The Daily Beast (Jan. 29,
2017, 8:44 a.m.), https://goo.gl/unbtlN.

2
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 4 of 9 PageID# 106

At approximately 9:30 p.m., this Court issued the TRO ordering that: a) respondents

shall permit lawyers access to all legal permanent residents being detained at Dulles International

Airport; [and] b) respondents are forbidden from removing petitionerslawful permanent

residents at Dulles International Airportfor a period of 7 days from the issuance of this Order.

(Dkt. 3.) Shortly before that, the United States District Court for the Eastern District of New

York issued a nationwide TRO prohibiting CBP from removing green card and visa holders. 3

Upon information and belief, CBP officials received a copy of both orders through

multiple channels.

Later that evening, however, reports emerged from various sources that none of the

detainees was being permitted access to any of the lawyers gathered at Dulles to assist them, in

spite of the TRO. 4 At approximately 11:45 p.m., Senator Corey Booker arrived on the scene and

personally attempted to intercede with CBP officials, including presenting them with another

copy of the TRO. Booker reported that he was rebuffed: CBP told me nothing, and it was

unacceptable . . . . I believe its a Constitutional crisis, where the executive branch is not abiding

by the law. 5

On Sunday, January 29, at least five other members of Congress appeared at Dulles to

attempt to resolve the crisis and ensure compliance with the TRO: Representatives Robert C.

Bobby Scott (Va-3), Don Beyer (Va-8), Gerry Connolly (Va-11), Jamie Raskin (Md-8), and

3
Temporary Restraining Order, Darweesh v. Trump, No. 1:17-cv-480 (E.D.N.Y. Jan. 28, 2017),
ECF No. 8.
4
Woodruff, supra note 2.
5
Id.

3
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 5 of 9 PageID# 107

John Delaney (Md-6). 6 Congressman Beyers declaration describing the events is included with

this filing. He specifically went to the airport in response to reports that CBP officials

enforcing the Executive Order were detaining travelers and, contrary to the TRO, were not

permitting them access to lawyers. 7 He spent more than four hours at Dulles (from 1 p.m. to

5:30 p.m.) and describes the many people he saw, awaiting the arrival of their friends and family

members, as being anxious, grief-stricken, and confused. 8

Congressman Beyer recounts his unsuccessful efforts to find even one detainee who had

been allowed access to counsel:

Attorney after attorney complained to me that CBP would not

allow them access to the holding rooms where travelers may have
been detained. To my knowledge, not a single attorney was
permitted access to any detained traveler. My congressional
colleagues and I were also denied access to detainees. 9

He goes on to describe how CBP officials refused not only to meet with members of Congress

but to provide any assurance that they were complying with the TRO. 10 Congressman Beyer

concluded (and characterized to others) that CBPs continued enforcement of the Executive

Order amounted to a constitutional crisis: four members of Congress asked CBP officials to

enforce a federal court order, and we were all turned away. 11

CBPs apparent violation of the TRO is reflected in one instance described by

6
Local Congressmen Demanded to Speak with Customs and Border Protection at Dulles, Were
Refused, DCist (Jan. 29, 2017 2:43 p.m.),
http://dcist.com/2017/01/customs_and_border_protection_still.php
7
Beyer Decl. 5.
8
Id. 6.
9
Id. 7.
10
Id. 8.
11
Id. 9.

4
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 6 of 9 PageID# 108

Congressman Beyer. A detainee from Sudan with a valid green card was eventually released

after the congressmens insistence upon compliance with the TRO. Congressman Beyer

recounts that [t]he deputy police chief who was our intermediary with CBP explained that CBP

had decided to release her and so no lawyer was necessary. 12 Such reports are particularly

disturbing in light of the Aziz petitioners allegations in the Amended Complaint that they were

removed from the United States and coerced into signing documents that petitioners believe

waived their visa rights. Despite those disturbing reports, however, respondents have publicly

insisted that [u]pon issuance of the court orders yesterday [Saturday], U.S. Customs and Border

Protection (CBP) immediately began taking steps to comply with the orders, and that [w]e are

and will remain in compliance with judicial orders. 13

The Commonwealth of Virginia has independently attempted to determine which of its

residents have been detained or removed from the United States, and whether respondents have

complied with the access-to-counsel requirements of the TRO. On Saturday afternoon, the

Governor and Attorney General of Virginia both visited Dulles and witnessed firsthand the plight

of those awaiting the release of their friends and family members. On the evening of Sunday,

January 31, 2017, the Attorney General of Virginia sent a letter to respondents, delivering it by

email from the State Solicitor, at 8:55 p.m., to respondent Wayne Biondi and also to Dana

Boente, U.S. Attorney for the Eastern District of Virginia (and, as of the evening of January 30,

2017, the Acting Attorney General). (Ex. 1.) The Attorney General sought an accounting of the

number of Virginia residents detained and removed, an explanation of why respondents appear to

12
Id. 10.
13
DHS Statement On Compliance With Court Orders And The Presidents Executive Order
(DHS Jan. 29, 2017), https://goo.gl/QEUC7R.

5
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 7 of 9 PageID# 109

have disobeyed the TRO, and the identities of any Virginia residents remaining in custody.

Attorney General Herring requested a response as soon as practicable, but by no later

than February 1. As of the filing of this motion, no response has been received.

THE COURT SHOULD ISSUE A RULE TO SHOW CAUSE

This Courts temporary restraining order is an injunction that is enforceable by contempt.

Fed. R. Civ. P. 70(e). Respondent Department of Homeland Security does not assert that it was

not bound by the TRO. To the contrary, it claims that respondents are and will remain in

compliance with the judicial orders. 14 But that conclusory statement is refuted by the public

reporting of events on the ground at Dulles on Saturday evening and Sunday, as well as by

Congressman Beyers first-hand account.

Moreover, the Commonwealth has sought unsuccessfully to determine if respondents

have respected the rights of its Virginia residents, including abiding by the injunction against

removing persons from the United States after the TRO was issued and providing access to

counsel for those being held.

Because respondents have failed without explanation to answer these eminently

reasonable questions by members of Congress and the Attorney General of Virginia, it is

appropriate for this Court to require respondents to demonstrate their compliance. Respondents

should be required to file a written accounting of their compliance efforts by February 7. They

should be required to submit sworn statements addressing, at a minimum: (1) the time on January

28, 2017 that they received actual notice of the TRO in this case and in Darweesh; (2) the

number of air passengers on January 27, 28, and 29 arriving at Dulles International Airport with

lawful permanent residence status who were removed from the United States, both before and

14
DHS Statement, supra note 13.

6
Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 8 of 9 PageID# 110

after receipt of actual notice of the TRO; (3) whether any such arrivals were denied prompt

access to counsel in light of reports that lawyers were refused such access and there appear to be

no reported cases of any such arriving passenger being granted such access; and (4) the name and

title of all government officials, if any, who instructed CBP personnel not to comply with the

TRO.

It should go without saying that compliance with a court order is fundamental to the rule

of law. As the Supreme Court and this Court have made clear:

We begin with the basic proposition that all orders and judgments
of courts must be complied with promptly. If a person to whom a
court directs an order believes that order is incorrect the remedy is
to appeal, but, absent a stay, he must comply promptly with the
order pending appeal. Persons who make private determinations of
the law and refuse to obey an order generally risk criminal
contempt even if the order is ultimately ruled incorrect. 15

Because respondents conduct and refusal to account for their actions last weekend

suggests disobedience of this Courts TRO, the Court should require a written accounting of how

respondents actually complied. Given that the access-to-counsel requirement in the TRO is

continuing, it is essential to determine as quickly as possible that respondents have complied and

are complying.

15
Maness v. Meyers, 419 U.S. 449, 458 (1975); United States v. Al-Arian, No. 1:08cr131, 2008
WL 3843464, at *3 (E.D. Va. Aug. 14, 2008) (Brinkema, J.) (quoting Maness).

7
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CONCLUSION

The Court should issue a rule to show cause in the form of the attached proposed order.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

By: /s/
Stuart A. Raphael (VSB No. 30380)
Solicitor General

Office of the Attorney General

202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile
sraphael@oag.state.va.us

Mark R. Herring
Attorney General of Virginia

Trevor S. Cox (VSB No. 78396)

Deputy Solicitor General
tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194)

Assistant Attorney General
mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

CERTIFICATE OF SERVICE

I certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court
using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of
record for Petitioners and Respondents.

By: /s/
Stuart A. Raphael

8
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From: Raphael, Stuart A.

To: Dana Boente (-- @usdoj.gov); Wayne Biondi (-- @cbp.dhs.gov)
Cc: -- @kaine.senate.gov; -- @warner.senate.gov; - -- @governor.virginia.gov;
O"Holleran, Kevin C.
Subject: Letter from Virginia Attorney General Mark Herring
Date: Sunday, January 29, 2017 8:54:43 PM
Attachments: 2017 01 29 Letter from AG Herring to CBP et al.pdf
Importance: High

Gentlemen:

Please see the attached letter from Virginia Attorney General Mark Herring. I do not have an email
address for Secretary Kelly or Acting Commissioner McAleenan and would appreciate your
forwarding this letter to them. A paper copy will follow tomorrow by regular mail. Please let me
know if you have any questions or need any additional information.

Very truly yours,

Stuart A. Raphael
Solicitor General
Office of the Attorney General
202 North 9th Street
Richmond, Virginia 23219
(804) 786-7240 Office
(703) 626-9153 Mobile
SRaphael@oag.state.va.us
http://www.ag.virginia.gov

Exhibit 1--Va. Mot. for Rule to Show Cause

 Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 2 of 4 PageID# 113

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Mark R. Herring 202 North 9th Street

Attorney General Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120

January 29, 2017

The Honorable John Kelly The Honorable Dana J. Boente

Secretary U.S. Attorney, Eastern District of Virginia
Department of Homeland Security 2100 Jamieson Ave.
Washington, D.C. 20528 Alexandria, VA 22314

Kevin K. McAleenan Wayne Biondi

Acting Commissioner Port Director of the Area Port of Washington
U.S. Customs & Border Protection Dulles, U.S. Customs & Border Protection
Washington, D.C. 20528 Washington, D.C. 20528

Re: This weekends events at Dulles International Airport

Gentlemen:

I am deeply concerned about events at Dulles International Airport on January 27, 28,
and 29, 2017, in which U.S. Customs & Border Protection personnel (CBP) detained air
passengers who arrived at the airport following issuance by President Trump of his Executive
Order dated January 27, 2017, entitled Protecting the Nation From Foreign Terrorist Entry Into
the United States.

On Saturday, January 28, at approximately 9:30 p.m., the United States District Court for
the Eastern District of Virginia issued a temporary restraining order (TRO) in Aziz v. Trump,
directed against all respondents: President Trump; the Department of Homeland Security; U.S.
Customs and Border Protection; Secretary Kelly; Acting Commissioner McAleenan; and Port
Director Biondi. The TRO enjoined respondents: (1) to permit lawyers access to all legal
permanent residents being detained at Dulles International Airport; and (2) to refrain from
removing petitionerslawful permanent residents at Dulles International Airportfor a period
of 7 days from the issuance of this Order. It was widely reported on Saturday night and
yesterday that CBP officials refused to permit such access to counsel, even after receiving notice
of the TRO.

Although many aspects of these events are disturbing, I am particularly troubled that
Virginia residents were detained, or returned to the country from which their travel originated,

Exhibit 1--Va. Mot. for Rule to Show Cause

Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 3 of 4 PageID# 114
January 29, 2017
Page 2

despite having been previously issued lawful permanent residence status or lawful student or
work visas. Accordingly, I respectfully request that you provide the following information:

Lawful Permanent Residents

1) How many persons with lawful permanent resident status were detained at Dulles on
January 27, 28, and 29? Of those detained, how many were removed from the United
States before CBP personnel at Dulles received actual notice of the TRO? How many
were removed after such notice was received? What time on January 28 did CBP receive
actual notice of the TRO and how and to whom was that notice provided?

2) Why did the respondents in Aziz disobey the TROs directive to permit lawyers to have
access to the detained lawful permanent residents? Please provide the names and titles of
all officials responsible for that decision.

3) Of those lawful permanent residents detained at Dulles on January 27, 28, or 29, how
many showed a residence address in the Commonwealth of Virginia? Please provide the
name and address of such Virginia residents. For those who were removed from the
United States, please state the date the person was removed and identify the country to
which that person was removed. If CBP or Immigrations and Customs Enforcement
(ICE) continues to detain any such Virginia resident, please state the place where that
Virginia resident is currently detained.

Travelers with valid student or work visas

4) How many persons with valid student or work visas were detained at Dulles on January
27, 28, and 29 pursuant to the authority of the Executive Order? Of those detained, how
many showed a residence address in the Commonwealth of Virginia? Of those with a
Virginia residence, how many were removed from the United States and how many were
permitted entry?

5) Does the CBP continue to detain any Virginia residents who were traveling with a valid
student or work visa? If so, please provide the names and addresses of such Virginia
residents, their nationality, and the type of visa on which the person was traveling.

I would appreciate your providing this information as soon as practicable, but by no later
than February 1. If you have any questions about this request, please feel free to speak with
Solicitor General, Stuart A. Raphael (804-786-7240).

Thank you for your prompt attention to this matter.

Sincerely,

Mark R. Herring

Exhibit 1--Va. Mot. for Rule to Show Cause

Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 4 of 4 PageID# 115
January 29, 2017
Page 3

cc: The Hon. Terence R. McAuliffe, Governor

The Hon. Mark Warner, Senator
The Hon. Tim Kaine, Senator
Stuart A. Raphael, Solicitor General

Exhibit 1--Va. Mot. for Rule to Show Cause

Case 1:17-cv-00116-LMB-TCB Document 20 Filed 02/01/17 Page 1 of 4 PageID# 116

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)
Petitioners, )
)
v. ) Civil Action No. 1:17-cv-116
)
DONALD TRUMP, President ofthe United )
States, et al., )
)
Respondents. )

DECLARATION OF CONGRESSMAN DONALDS. BEYER, JR.

I, Congressman DonaldS. Beyer, Jr., declare that the following facts are true to the best

of my knowledge, information and belief:

1. I represent Virginia's 8th congressional district in the U.S. House of

Representatives and have served in that position since January 6, 2015.

2. I previously served as United States Ambassador to Switzerland and Liechtenstein

(2009-2013). In that position I oversaw the consular affairs of the embassy and became familiar

with the vetting processes by which the U.S. Department of Homeland Security grants green

cards to permanent residents, and by which visa applicants from a Middle Eastern country are

subjected to extensive research, often requiring six months to a year to complete. I also served

as Lieutenant Governor of Virginia ( 1990-1998), and on Virginia's Commonwealth

Transportation Board (1987-1990), in which roles I became generally familiar with the

operations of Dulles International Airport ("Dulles").

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3. I am familiar with the Executive Order signed by President Trump on January 27,

2017, styled "Protecting the Nation from Foreign Terrorist Entry into the United States" (the

"Executive Order").

4. I am familiar with the temporary restraining order entered by the Court in this

matter on January 28, 2017 (the "TRO"), which I understand requires, in part, that U.S. Customs

and Border Protection (CBP) officials permit lawyers access to all legal permanent residents

being detained at Dulles.

5. On January 29, 2017, I visited Dulles in response to reports that CBP officials

enforcing the Executive Order were detaining travelers and, contrary to the TRO, were not

permitting them access to lawyers. My congressional colleagues Gerry Connolly (VA-ll),

Jamie Raskin (MD-8), and John Delaney (MD-6) also were present.

6. I spent more than four hours at Dulles, from about 1 p.m. to 5:30p.m. During

that time, I spoke with numerous families awaiting the arrival of travelers from the seven

countries affected by the Executive Order. In some cases, the traveler had arrived at Dulles but

had been detained for questioning upon arrival; in others, the traveler had been prevented from

boarding U.S.-bound planes in other countries. The families I met were anxious, grief-stricken,

and confused.

7. I was moved by these interactions with families to try to uncover information

about the status of detained travelers. Among other things, I investigated whether any of the

many attorneys present to provide legal services had been granted access to detained travelers.

Attorney after attorney complained to me that CBP would not allow them access to the holding

rooms where travelers may have been detained. To my knowledge, not a single attorney was

2
Case 1:17-cv-00116-LMB-TCB Document 20 Filed 02/01/17 Page 3 of 4 PageID# 118

permitted access to any detained traveler. My congressional colleagues and I were also denied

access to detainees.

8. Alarmed by this situation, my colleagues and I personally attempted to speak with

CBP staff. We were denied access to CBP staff by Dulles police, who, while polite, informed us

that they were under orders not to allow anyone to make contact with CBP. We asked the deputy

police chief to request that CBP officials come to the concourse to speak with us, or allow us to

come to their office, to get assurances that they would comply with the TRO. CBP did not

respond to our requests.

9. As a result of these experiences, I concluded (and characterized to others) that

CBP's continued enforcement of the Executive Order amounted to a constitutional crisis: four

members of Congress asked CBP officials to enforce a federal court order, and we were all

turned away.

10. Notwithstanding CBP's lack of responsiveness, we did what we could to assist

affected families. In one instance, we learned of a detained traveler from Sudan, a permanent

U.S. resident who holds a Ph.D. and works in northern Virginia. She had been detained on

arrival, her green card and passport had been taken from her by CBP, and she had not been

permitted access to counsel. Only after I intervened, along with four immigration attorneys and

a highlighted copy of the TRO, did CBP release her. The deputy police chief who was our

intermediary with CBP explained that CBP had decided to release her and so no lawyer was

necessary.

11. I remain concerned about the continued enforcement of the Executive Order and

its impact on members of my congressional district. To take just one example, I am aware that

the Sudanese mother of a constituent who is in a coma was recently granted a visa to visit him in

3
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an intensive care unit in a Washington, D.C. hospital. Following issuance of the Executive

Order, she was prevented from boarding her plane in Dubai to make that trip. I anticipate

learning of other similarly distressing stories affecting constituents.

Pursuant to 28 U.S.C. 1746, I declare under the penalty of perjury that the foregoing is

true and correct.

3( '2017.