International Refugee Assistance Project v. Trump

Filing 115

MOTION by Amicus Supporting Appellee T.A. file addendum/attachment to Corrected Brief of Amicus Curiae T.A... Date and method of service: 04/12/2017 ecf. [1000060776] [17-1351] Richard Bernstein

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No. 17-1351 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al. Plaintiffs-Appellees, v. DONALD J. TRUMP, et al. Defendants-Appellants On Appeal from an Order of the United States District Court for the District of Maryland (Chuang, J.) Civil Action No. TDC-17-0361 MOTION FOR LEAVE TO FILE ADDENDUM TO CORRECTED BRIEF OF AMICUS CURIAE T.A., A U.S. RESIDENT OF YEMENI DESCENT, IN SUPPORT OF APPELLEES, AFFIRMANCE OF THE PRELIMINARY INJUNCTION, AND DENIAL OF THE GOVERNMENT’S MOTION FOR A STAY WILLKIE FARR & GALLAGHER LLP Richard D. Bernstein 1875 K Street, N.W. Washington D.C. 20006-1238 Telephone: (202) 303-1000 Facsimile: (202) 303-2000 Counsel for Amicus Curiae T.A. Date: April 12, 2017 MOTION FOR LEAVE TO FILE ADDENDUM TO CORRECTED BRIEF OF AMICUS CURIAE T.A., A U.S. RESIDENT OF YEMENI DESCENT, IN SUPPORT OF APPELLEES, AFFIRMANCE OF THE PRELIMINARY INJUNCTION, AND DENIAL OF THE GOVERNMENT’S MOTION FOR A STAY Pursuant to 4th Circuit Rule 28(b), amicus curiae T.A.,1 by and through undersigned counsel, respectfully moves this Court for leave to file the accompanying five-page Addendum to his corrected amicus curiae brief in support of Appellees. Appellees have consented to this motion and Appellants take no position. Amicus states as follows: 1. By order dated April 10, 2017, this Court required T.A. to file a motion for leave to file an addendum to amicus’s corrected brief. (Dkt. 106 (requiring motion for leave).) 2. Amicus’s corrected brief in support of Appellees is being filed concurrently with this motion and argues that this Court should affirm, and deny a stay of, the order issued below preliminarily enjoining Section 2(c) of President Trump’s Amended Executive Order, dated March 6, 2017 (the “Amended This motion uses initials, rather than T.A.’s full name, to reduce the risk of potential reprisals to T.A. or his family members. Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014) (use of pseudonym may be appropriate, even for a party, when “identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties”) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)). 1 1 Order”).2 T.A.’s amicus brief focuses on one issue: the Government’s failure even to address whether the travel ban is justified by national security despite this Administration’s own, current enhanced vetting. 3. Amicus respectfully requests leave to file an addendum of two exhibits, submitted concurrently herewith, as an attachment to its corrected brief. The Court may take judicial notice of these two government documents because they are in the public record and their authenticity and contents are beyond debate. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (“[A] court may properly take judicial notice of ‘matters of public record[.]’”). These two government documents will assist the Court in its consideration of the arguments raised by T.A. and the parties. 4. The first addendum exhibit (“Exhibit 1”) is Cable 25814 from the United States Department of State, dated March 17, 2017. The Cable could not have been included in the record below because it was issued after the Preliminary Injunction was entered by the District Court. The Cable is publicly available at The State Department Cable implements new, enhanced vetting procedures—for all visa applicants regardless of nationality—including longer interviews, more detailed questioning, and a mandatory social media review 2 Amicus’s corrected brief replaces 11 exhibits with reference to where the materials are publicly available and contains a sentence omitted from amicus’s previously-filed brief. 2 if a visa applicant was ever present in an ISIS-controlled territory. The State Department Cable is important because Paragraph 2(c) of the Amended Order stated that the temporary travel ban would “ensure that adequate standards are established to prevent infiltration by foreign terrorists.” 82 Fed. Reg. 13209 (Amended Order) at § 2(c). As described on pages 12-13 of T.A.’s amicus brief, the State Department Cable demonstrates that this Administration already has established such adequate standards. Since the Cable was issued, the Administration has never asserted, in a brief or otherwise, that its own, current procedures are inadequate for screening any person, including nationals of the six countries identified in the Amended Order. Yet, the Administration nonetheless continues to pursue its travel ban. This confirms that the real reason for the ban always has been fulfilling the President’s campaign appeals to religious prejudice. See T.A. Amicus Brief at 12-13. 5. The second addendum exhibit (“Exhibit 2”) includes prepared opening remarks by the White House Press Secretary at the official March 7, 2017 press briefing. This exhibit is publicly available at and is part of the record in Hawaii v. Trump, No. 17-15589, scheduled for argument in the Ninth Circuit on May 15, 2017. See Hawaii v. Trump, CV. No. 17-00050 (D. Haw.), ECF No. 201-2. One of the issues before both Circuits is whether to consider the President’s campaign promises. In Exhibit 2, the White House Press 3 Secretary stated that the Amended Order “deliver[s] on” one of the President’s most important “campaign promises: protecting the country against radical Islamic terrorism.” As amicus indicates at page 9 of the brief, this is a statement (i) by the President’s official spokesperson, (ii) made after the inauguration, that (iii) links specific campaign promises to (iv) this specific (v) Executive Order. Absent this context, a court could distinguish any future case involving a statute passed by Congress, or where the President’s principal spokesperson did not link specific campaign promises to a specific Presidential action. CONCLUSION Amicus respectfully requests that the Court grant this motion for leave to file a five-page Addendum and accept for filing Addendum Exhibits 1 and 2. WILLKIE FARR & GALLAGHER LLP By: /s/ Richard D. Bernstein 1875 K Street, N.W. Washington D.C. 20006-1238 Telephone: (202) 303-1000 Facsimile: (202) 303-2000 Counsel for Amicus Curiae T.A. 4 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Effective 12/01/2016 No. ____________ 17-1351 Int'l Refugee Assistance Project, et al. v. Trump, et al. Caption: __________________________________________________ CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Type-Volume Limit, Typeface Requirements, and Type-Style Requirements Type-Volume Limit for Briefs: Appellant’s Opening Brief, Appellee’s Response Brief, and Appellant’s Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee’s Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus Brief may not exceed 6,500 words or 650 lines. Amicus Brief in support of an Opening/Response Brief may not exceed 7,650 words. Amicus Brief filed during consideration of petition for rehearing may not exceed 2,600 words. Counsel may rely on the word or line count of the word processing program used to prepare the document. The word-processing program must be set to include headings, footnotes, and quotes in the count. Line count is used only with monospaced type. See Fed. R. App. P. 28.1(e), 29(a)(5), 32(a)(7)(B) & 32(f). Type-Volume Limit for Other Documents if Produced Using a Computer: Petition for permission to appeal and a motion or response thereto may not exceed 5,200 words. Reply to a motion may not exceed 2,600 words. Petition for writ of mandamus or prohibition or other extraordinary writ may not exceed 7,800 words. Petition for rehearing or rehearing en banc may not exceed 3,900 words. Fed. R. App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) & 40(b)(1). Typeface and Type Style Requirements: A proportionally spaced typeface (such as Times New Roman) must include serifs and must be 14-point or larger. A monospaced typeface (such as Courier New) must be 12-point or larger (at least 10½ characters per inch). Fed. R. App. P. 32(a)(5), 32(a)(6). This brief or other document complies with type-volume limits because, excluding the parts of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of citations, statement regarding oral argument, signature block, certificates of counsel, addendum, attachments): 829 [✔] this brief or other document contains [ ] this brief uses monospaced type and contains [state number of] words [state number of] lines This brief or other document complies with the typeface and type style requirements because: [✔] [ ] this brief or other document has been prepared in a proportionally spaced typeface using [identify word processing program] in Font size 14 Times New Roman [identify font size and type style]; or Microsoft Word this brief or other document has been prepared in a monospaced typeface using [identify word processing program] in [identify font size and type style]. (s) Richard D. Bernstein Party Name Amicus Curiae T.A. Dated: 4/12/2017 11/14/2016 SCC CERTIFICATE OF SERVICE I certify that on this 12th day of April 2017, the foregoing motion was filed using the Court’s CM/ECF system. All participants in the case are registered CM/ECF users and will be served electronically via that system. Dated: April 12, 2017 /s/ Richard D. Bernstein Richard D. Bernstein WILLKIE FARR & GALLAGHER LLP 6

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