International Refugee Assistance Project v. Trump

Filing 139

MOTION by Amici Curiae International Law Scholars and Non-Governmental Organizations leave to file Amicus Curiae Brief. Date and method of service: 04/18/2017 ecf. [1000063708] [17-1351] Elisabeth Frost

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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 the United States District Court for the District of Maryland UNOPPOSED MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS-APPELLEES’ RESPONSE BRIEF Elisabeth C. Frost Amanda R. Callais PERKINS COIE LLP 700 13th Street, NW, Suite 600 Washington, DC 20005 Phone: 202.654.6256 Email: efrost@perkinscoie.com Email: acallais@perkinscoie.com Aaron X. Fellmeth ARIZONA STATE UNIVERSITY SANDRA DAY O’CONNOR COLLEGE OF LAW Mail Code 9520 111 E. Taylor St. Phoenix, AZ 85004-4467 Phone: 480.241.8414 Email: aaron.fellmeth@asu.edu Joseph M. McMillan Michelle L. Maley PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Email: jmcmillan@perkisncoie.com Email: mmaley@perkinscoie.com Jonathan Hafetz SETON HALL UNIV. SCHOOL OF LAW One Newark Center Newark, NJ 07102 Phone: 917.355.6896 Email: jonathan.hafetz@shu.edu Counsel for Amici Curiae International Law Scholars and Non-Governmental Organizations INTRODUCTION Non-party international law scholars and nongovernmental organizations (“Proposed Amici”) hereby move for leave to file an amicus curiae brief in support of Plaintiffs-Appellees’ Response Brief (Dkt. 132). Proposed Amici specialize in areas of international law involving the rights of aliens and refugees, and the obligations of the United States under various treaties and international covenants to which it has acceded, jurisprudence which the movants respectfully submit could assist the Court in assessing the legality of Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“EO”). The amicus brief that Proposed Amici request be considered is attached as Exhibit A. IDENTITY AND INTEREST OF PROPOSED AMICI CURIAE The eighty-one international law scholars include practitioners and tenured faculty members at law schools in the United States who have devoted extensive efforts to the study and practice of international law. See Appendix A to Proposed Amicus Brief (listing all Amici). They research, teach, speak, and publish widely on international law issues, and they routinely advise and practice in matters addressing such issues before American courts. The nongovernmental organizations join the international law scholars as Proposed Amici. 1 The nongovernmental organizations collectively are experts in civil rights law, immigration law, and international human rights law. As scholars and practitioners in the area, Proposed Amici have a strong interest in ensuring that the Court reaches a decision that conforms to the existing body of international law. ARGUMENT A. This Court Should Allow the Participation of Proposed Amici Curiae This Court has “broad discretion” to appoint amici curiae. Skokomish Indian Tribe v. Goldmark, No. C13-5071JLR, 2013 WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013) (Robart, J.). Submission of an amicus brief is valuable to the Court because it “suggests the interpretation and status of the law, gives information concerning it, and advises the Court in order that justice may be done . . . .” Cmty. Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999). District courts normally allow amicus briefs when the amicus has “unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Id. Amicus participation is particularly appropriate where, as here, the ramifications of the decision extend beyond the parties directly involved. Sierra Club v. BNSF Ry. Co., No. C13-967-JCC, 2016 U.S. Dist. LEXIS 124269, at *5 (W.D. Wash. Sept. 13, 2016). 2 B. The Amicus Brief Will Help the Court Assess the Legality of the Executive Order Under Domestic and International Law Proposed Amici possess unique information and perspectives that can help this Court understand the impacts the EO will have on the United States’ international relations and its ability to honor its international law obligations— ramifications that extend beyond the individuals directly involved in this case. The United States is party to several treaties and international covenants that address issues that are immediately and urgently raised by the EO, including for example, provisions in the EO making distinctions based on national origin. Proposed Amici respectfully submit that the accompanying amicus brief, by describing the rights and obligations established by those instruments, may assist the Court in assessing the legality of the EO under both international and U.S. domestic law. Under the U.S. Constitution, of course, “all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const., Art.VI, cl. 2. Moreover, even if the international covenants identified in the amicus brief do not independently or directly compel the Court to invalidate the EO, they should inform the Court’s interpretation of governing statutes based on well-established canons of statutory construction. The attached amicus brief may also illuminate the ways in which the international community will assess the EO in light of customary international law, which will in turn affect how other nations 3 view and deal with the United States across a wide range of issues, including cooperation on national security matters. C. The Amicus Brief is Timely, Filed in Support of Plaintiffs-Appellees’ Response Brief This Court issued an Order on March 23, 2017, see Dkt. 25, requiring that any amicus curiae brief in support of Plaintiffs-Appellees be filed by April 19, 2017. The instant motion and accompanying brief are filed on April 17, 2017, well before that deadline. Accordingly, this submission by Proposed Amici is timely. D. Plaintiffs-Appellees and Defendants-Appellants Consent to the Filing of the Amicus Brief Proposed Amici have obtained Plaintiffs-Appellees’ and Defendants- Appellants’ consent to the filing of the attached amicus brief. Proposed Amici therefore submit this motion for leave to file their amicus brief in satisfaction of the Federal Rules of Appellate Procedure. Fed. R. Civ. P. 29(a). CONCLUSION Proposed Amici respectfully request permission to file the attached amicus curiae brief in support of Plaintiffs-Appellees. RESPECTFULLY SUBMITTED this 17th day of April, 2017 4 By: s/ Elisabeth C. Frost Elisabeth C. Frost D.C. Bar No. 1007632 Amanda R. Callais Va. Bar No. 85891 PERKINS COIE LLP 700 13th Street, NW, Suite 600 Washington, DC 20005 Telephone: 202.654.6256 Facsimile: 202.654.9959 Email: efrost@perkinscoie.com Email: acallais@perkinscoie.com Local Counsel for Proposed Amici Curiae Jonathan Hafetz NY Bar No. 3004884 SETON HALL UNIV. SCHOOL OF LAW One Newark Center Newark, NJ 07102 Telephone: 917.355.6896 Email: jonathan.hafetz@shu.edu Counsel for Proposed Amici Curiae 5 CERTIFICATE OF SERVICE I certify that on April 17, 2017 the forgoing document was served on all parties or their counsel of record through the CM/ECF system if they are registers users or, if they are not, by serving a true and correct copy by First Class U.S. Mail at the address listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 Respectfully Submitted, Dated: s/ Elisabeth C. Frost Elisabeth C. Frost April 17, 2017 1

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