International Refugee Assistance Project v. Trump

Filing 140

AMICUS CURIAE/INTERVENOR BRIEF by Amici Curiae International Law Scholars and Non-Governmental Organizations in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: hand delivery. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 04/18/2017. [1000063717] [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 AMICUS CURIAE BRIEF OF INTERNATIONAL LAW SCHOLARS AND NONGOVERNMENTAL ORGANIZATIONS 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 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 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 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 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, Amnesty International Limited ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, Human Rights & Gender Justice Clinic, City University of New York School of Law ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, Human Rights Advocates ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, International Association of Democratic Lawyers ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, International Center for Advocates Against Discrimination ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, International Justice Project ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, International Justice Resource Center ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, Legal Aid Society (New York) ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, MADRE ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, National Law Center on Homelessness & Poverty ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, National Lawyers Guild ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, Secular Communities of Arizona ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 17-1351 No. __________ International Refugee Assistance Project v. Donald J. Trump Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, T’ruah: The Rabbinic Call for Human Rights ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ Amicus Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) Is party/amicus a publicly held corporation or other publicly held entity? 2. Does party/amicus have any parent corporations? YES ✔ NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners: 09/29/2016 SCC -1- YES ✔ 1. NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES ✔ NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee: s/ Elisabeth C. Frost Signature: ____________________________________ YES ✔ NO 4/17/2017 Date: ___________________ Amicus Curiae Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** 4/17/2017 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Victor Williams AMERICA FIRST LAWYERS ASSOCIATION 5209 Baltimore Ave. Bethesda, MD 20816 Telephone: 301.951.9045 s/ Elisabeth C. Frost _______________________________ (signature) 4/17/2017 ________________________ (date) -2- TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... ii RULE 29 STATEMENT OF INTEREST OF AMICI CURIAE...............................1 I. INTRODUCTION ..........................................................................................2 II. ARGUMENT ..................................................................................................3 A. International Law Is Relevant to Assessing the Legality of the Executive Order ....................................................................................3 B. International Law Regarding Discrimination on the Basis of Religion and National Origin ...............................................................8 1. 2. C. III. The International Covenant on Civil and Political Rights .........8 The International Convention on the Elimination of All Forms of Racial Discrimination ...............................................12 Relevant Provisions of the Executive Order ......................................14 CONCLUSION.............................................................................................16 i TABLE OF AUTHORITIES U.S. CASES F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 U.S. 155 (2004) .............................................................................................. 6 Filartiga v. Pena-Irala, 630 F.2d 876, 882 n.9 (2d Cir. 1980) ................................................................... 6 Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984) .............................................................................................. 5 Kerry v. Din, __ U.S. __, 135 S. Ct. 2128 (2015) (Kennedy, J., concurring) .......................... 10 Landon v. Plasencia, 459 U.S. 21 (1982) .............................................................................................. 10 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) .....................................................................5, 6 The Paquete Habana, 175 U.S. 677, 700 (1900)...................................................................................... 6 Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) ................................................................................... 6 TBB-Turkish Union in Berlin/Brandenburg v. Germany, Comm. on the Elimination of Racial Discrim., Commun. No. 48/2010 (Feb. 26, 2013), U.N. Doc. CERD/C/82/D/48/2010 ............................ 14 United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) ............................................................................... 7 U.S. CONSITITUTION Art. II, § 3 ...................................................................................................................6 Art. VI ........................................................................................................................6 Art. VI, cl. 2 ............................................................................................................... 3 ii LEGISLATIVE HISTORY 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992................................................4, 8 140 Cong. Rec. S7634-02 (daily ed., June 24, 1994) .............................................. 12 TREATIES International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) Art. 1(1)...............................................................................................................12 Art. 1(3)...............................................................................................................13 Art. 2 .............................................................................................................12, 13 Art. 5 ...................................................................................................................13 International Covenant on Civil and Political Rights Art. 2, Dec. 19, 1966, 999 U.N.T.S. 171 (1976) .........................................passim Art. 22, Dec. 19, 1966, 999 U.N.T.S. 171 (1976) ................................................ 9 Art. 23, Dec. 19, 1966, 999 U.N.T.S. 171 (1976) ................................................ 9 Art. 26, Dec. 19, 1966, 999 U.N.T.S. 171 (1976) ............................10, 11, 13, 16 INTERNATIONAL DECLARATIONS Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287 (1995/96) ................................................................................................. 12 Universal Declaration of Human Rights, arts. 2, 7, 12, G.A. Res. 217A(III), U.N. Doc. A/810 (1948) .................................................................... 11 OTHER INTERNATIONAL MATERIALS Committee on the Elimination of Racial Discrimination, General Recommendation No. 30, para. 4, 64th Sess., U.N. Doc. CERD/C/64/Misc.11/rev.3 (2004) ........................................................................ 9 Committee on the Elimination of Racial Discrimination, General Recommendation No. 35: Combating Racist Hate Speech, para. 6, U.N. Doc. CERD/C/OC/35 (2013) ..................................................................... 13 Human Rights Committee, General Comment No. 15, para. 5 (1986), U.N. Doc. HRI/GEN/1/Rev.1 (1994) ................................................................. 10 iii Human Rights Committee, General Comment No. 18, para. 6, U.N. Doc. HRI/GEN/1Rev.1 at 26 (1994) .................................................................... 9 Human Rights Committee, General Comment No. 19, para. 5 (1990), U.N. Doc. HRI/GEN/1/Rev.1 (1994) ................................................................. 10 State Reports—Convention Against Torture—U.S.A., U.N. Doc. CAT/C/28/Add.5, para. 57 (Feb. 9, 2000) ............................................................ 5 OTHER SOURCES Aaron Xavier Fellmeth, Paradigms of International Human Rights Law 119-21 (2016) ............................................................................................... 9 Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 The Papers of Alexander Hamilton 33, 33-43 (Harold C. Syrett ed. 1969). ....................................................................................................................7 Central Intelligence Agency, World Factbook, https://www.cia.gov/library/publications/ the-worldfactbook/geos/xx.html......................................................................................... 15 Hearing Before the Comm. on Foreign Relations, U.S. Senate, 101st Cong. (1990) ......................................................................................................... 5 O.A.S. Res. XXX (1948), Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 13 (2010) ..................................................................................................................12 Sen. Exec. Rpt. 101-30, Resolution of Advice and Consent to Ratification (1990) ................................................................................................ 4 Senate Comm. on Foreign Relations, Report on International Convention on the Elimination of All Forms of Racial Discrimination, S. Exec. Rep. No. 103-29 (1994). ............................................... 5 iv RULE 29 STATEMENT OF INTEREST OF AMICI CURIAE The Amici are eighty-one international law scholars and several nongovernmental organizations. See Appendix A (listing all Amici). The 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. 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. They include members of the International Human Rights Committee of the International Law Association, American Branch, 1 as well as university professors and practicing lawyers with expertise in these subjects. The nongovernmental organizations are experts in civil rights law, immigration law, and international human rights law. Amici submit this brief to vindicate the public interest in ensuring a proper understanding and application of the international human rights law relevant to this case. As scholars and practitioners in the area, the Amici have a strong interest in ensuring that the Court reaches a decision that conforms to the existing body of 1 This brief represents the opinion of the Committee members, not that of the International Law Association, American Branch. No party or party’s counsel authored the brief in whole or in part or contributed money that was intended to fund preparing or submitting the brief. Fed. R. App. P. 29(a)(4)(E). 1 international law. The Amici support the Plaintiffs-Appellees in this matter and urge affirmance of the decision below. As set out in the accompanying Motion to File Amicus Brief, PlaintiffsAppellees and Defendants-Appellants consent to the filing of this brief. I. INTRODUCTION The purpose of this brief is to bring to the Court’s attention U.S. treaty provisions and customary international law principles that bear on the legality of Executive Order 13780 of March 6, 2017 (“EO”), which replaces the nowrescinded Executive Order No. 13769 of January 27, 2017. International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress. The United States is a party to and bound by several international human rights treaties relevant to the subject matter of the EO. In assessing the legality of the EO, the Court should be cognizant of those treaty obligations, and of customary international law, which should influence constructions of the U.S. Constitution and statutes that prohibit discrimination based on religion or national origin. In addition, the Immigration and Nationality Act and other statutes must be read in harmony with these international legal obligations pursuant to the 2 Supremacy Clause of the Constitution and long established principles of statutory construction requiring acts of Congress to be interpreted in a manner consistent with international law, whenever such a construction is reasonably possible. In this case, the international law obligations described below reinforce interpretations of those statutes forbidding discrimination of the type threatened by Sections 2 and 11 of the EO. II. A. ARGUMENT International Law Is Relevant to Assessing the Legality of the Executive Order International law is relevant to this case because the U.S. Constitution makes treaties part of U.S. law. Customary international law is also part of U.S. law and is enforceable by U.S. courts. Under the Supremacy Clause of the Constitution, “treaties made . . . under the authority of the United States, shall be the supreme law of the land, and judges of every state shall be bound thereby.” 2 Although the Constitution does not require legislation prior to treaties taking legal effect, the Supreme Court distinguishes between self-executing and non-self-executing treaties. 3 The Senate or the President has declared that the relevant human rights 2 3 U.S. Const. art. VI, cl. 2. See Restatement (Third) of Foreign Relations Law § 111(3)-(4) (1987). 3 treaties to which the United States is a party are non-self-executing.4 Nevertheless, by ratifying those treaties, the United States bound itself to provide judicial or other remedies for violations of treaty obligations. 5 Thus, even if the treaty provisions themselves are not directly enforceable in U.S. courts, the rights they grant should be protected by courts through their interpretation of constitutional provisions and statutes addressing the same or similar subject matter. This is consistent with the positions taken by both the Executive Branch and Congress in those cases in which Congress has not passed implementing legislation. 6 When submitting human rights treaties to the Senate for its advice and consent, both Presidents George H.W. Bush and William Clinton assured the Senate that the United States could and would fulfill its treaty commitments by applying existing federal constitutional and statutory law. 7 Courts generally 4 See, e.g., 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992) (International Covenant on Civil and Political Rights); Sen. Exec. Rpt. 101-30, Resolution of Advice and Consent to Ratification (1990), at II(2) (Convention Against Torture). 5 See, e.g., International Covenant on Civil and Political Rights art. 2(2), Dec. 19, 1966, 999 U.N.T.S. 171 (1976) [hereinafter “CCPR”]. 6 See, e.g., U.N. Doc. CAT/C/28/Add.5, paras. 58-60 (“Where domestic law already makes adequate provision for the requirements of the treaty and is sufficient to enable the United States to meet its international obligations, the United States does not generally believe it necessary to adopt implementing legislation.”). 7 During Senate hearings on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), June 26, 1987, 1465 U.N.T.S. 113, the State Department Legal Advisor told the Senate: “Any public official in the United States, at any level of government, who inflicts torture . . . would be subject to an effective system of control and punishment in the U.S. 4 construe federal constitutional and statutory law to be consistent with human rights treaties in part because the Senate has relied on such assurances as a basis for its consent to ratification. 8 The United States acknowledged this principle in its comments to the U.N. Committee Against Torture: “Even where a treaty is ‘nonself-executing,’ courts may nonetheless take notice of the obligations of the United States thereunder in an appropriate case and may refer to the principles and objectives thereof, as well as to the stated policy reasons for ratification.” 9 “Taking notice” of treaty obligations comports with a core principle of statutory construction announced by the Supreme Court in Murray v. The Charming Betsy: “[A]n act of Congress ought never to be construed to violate the law of nations if legal system.” Hearing Before the Comm. on Foreign Relations, U.S. Senate, 101st Cong. (1990), at 8. Similarly, with respect to the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), Dec. 21, 1965, G.A. Res. 2106 (XX), Annex, 660 U.N.T.S. 195, the Clinton Administration told the Senate: “As was the case with the prior treaties, existing U.S. law provides extensive protections and remedies sufficient to satisfy the requirements of the present Convention.” Senate Comm. on Foreign Relations, Report on International Convention on the Elimination of All Forms of Racial Discrimination, S. Exec. Rep. No. 103-29, at 25-26 (1994). 8 See, e.g., Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 426 (1984). 9 State Reports—Convention Against Torture—U.S.A., U.N. Doc. CAT/C/28/Add.5, para. 57 (Feb. 9, 2000) (citing Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1994)). 5 any other possible construction remains.” 10 That doctrine has been consistently and recently reaffirmed by the Supreme Court. 11 Moreover, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit observed that a treaty that is not self-executing may provide evidence of customary international law. 12 Customary international law must be enforced in U.S. courts even in the absence of implementing legislation, regardless of whether customary rules appear in a treaty. 13 In The Paquete Habana, the Supreme Court held that customary international law “is part of our law” and directly enforceable in courts when no conflicting treaty, legislative act, or judicial decision controls. 14 As discussed below, several human rights treaty rules applicable in this case are also customary international law. The President is also obligated to respect international law pursuant to his constitutional duty to faithfully execute the law. 15 Because Article VI of the 10 6 U.S. (2 Cranch) 64, 118 (1804); accord Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801). 11 See, e.g., F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 U.S. 155, 164 (2004). 12 630 F.2d 876, 882 n.9 (2d Cir. 1980). 13 Restatement (Third) of the Foreign Relations Law of the United States § 111(3). 14 175 U.S. 677, 700 (1900); see also Filartiga, 603 F.2d at 886 (“Appellees . . . advance the proposition that the law of nations forms a part of the laws of the United States only to the extent that Congress has acted to define it. This extravagant claim is amply refuted by the numerous decisions applying rules of international law uncodified by any act of Congress.”). 15 U.S. Const. art. II, sec. 3. 6 Constitution makes treaties the supreme law of the land, the President is constitutionally required to comply with U.S. treaty obligations as well as with customary international law. This was the intent of the Framers. 16 Courts therefore have a duty to restrain federal executive action that conflicts with a duly ratified treaty. As the Supreme Court wrote in ordering the President to restore a French merchant ship to its owner pursuant to a treaty obligation: “The constitution of the United States declares a treaty to be the supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted.” 17 Even if the President were not directly bound by international law, however, he is still obligated to comply with the Constitution itself and all applicable legislation enacted by Congress within its authority, which (as noted) must be interpreted in a manner consistent with international law whenever possible. The following sections identify the treaties and customary international law relevant to the legality of the EO. 16 Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 The Papers of Alexander Hamilton 33, 33-43 (Harold C. Syrett ed. 1969). 17 United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 109 (1801). 7 B. International Law Regarding Discrimination on the Basis of Religion and National Origin 1. The International Covenant on Civil and Political Rights Discrimination based on religion or national origin is prohibited by the International Covenant on Civil and Political Rights (“CCPR”). The United States ratified the CCPR in 1992.18 Article 2 of the CCPR states in relevant part: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, . . . religion, . . . national or social origin, . . . or other status. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. 18 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992). 8 The United Nations Human Rights Committee (“HRC”) is charged by the CCPR to monitor implementation by state parties and to issue guidance on its proper interpretation. The HRC interprets article 2 to prohibit “any distinction, exclusion, restriction or preference” based on a prohibited ground, and which has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of human rights and fundamental freedoms” protected by the treaty. 19 To justify a derogation from the nondiscrimination (or any other human rights) duty, a measure must pursue a legitimate aim and be proportionate to that aim. 20 A “proportionate” measure is one effective at achieving the aim and narrowly tailored (or “necessary”) to it. 21 The substantive rights guaranteed by the CCPR, which must be protected without discrimination based on religion or national origin under article 2, include the protection of the family. Article 23 provides in relevant part: “The family is the natural and fundamental group of society and is entitled to protection by society and the State.” 22 The HRC has interpreted this right to include living together, which in turn obligates the state to adopt appropriate measures “to ensure the unity 19 Human Rights Committee, General Comment No. 18, para. 6, U.N. Doc. HRI/GEN/1Rev.1 at 26 (1994). 20 Committee on the Elimination of Racial Discrimination, General Recommendation No. 30, para. 4, 64th Sess., U.N. Doc. CERD/C/64/Misc.11/rev.3 (2004). 21 See Aaron Xavier Fellmeth, Paradigms of International Human Rights Law 119-21 (2016). 22 CCPR, supra note 6, art. 22(1). 9 or reunification of families, particularly when their members are separated for political, economic or similar reasons.” 23 Restrictions on travel and entry caused by the EO that impose disparate and unreasonable burdens on the exercise of this right violate CCPR article 2. The HRC has explained that, although the CCPR does not generally recognize a right of aliens to enter or reside in the territory of a State party . . . , in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise. 24 Thus, the right of entry is not beyond the scope of the CCPR. On the contrary, the CCPR’s nondiscrimination principles and protections for family life should be considered by courts in interpreting government measures affecting family unification. This treaty-based protection for family life is consistent with Supreme Court jurisprudence respecting the role of due process of law in governmental decisions affecting family unity.25 More generally, article 26 of the CCPR prohibits discrimination in any government measure, regardless of whether the measure violates a Covenant right: 23 Human Rights Committee, General Comment No. 19, para. 5 (1990), U.N. Doc. HRI/GEN/1/Rev.1 at 28 (1994). 24 Human Rights Committee, General Comment No. 15, para. 5 (1986), U.N. Doc. HRI/GEN/1/Rev.1 at 18 (1994). 25 See Landon v. Plasencia, 459 U.S. 21, 34, 37 (1982); Kerry v. Din, __ U.S. __, 135 S. Ct. 2128, 2140–41 (2015) (Kennedy, J., concurring). 10 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. As interpreted by the HRC and consistent with its wording, this provision “prohibits discrimination in law or fact in any field regulated” by the government. 26 Notably, unlike CCPR article 2, the equal protection provisions of CCPR article 26 lack article 2’s limitation to “all individuals within [the state party’s] territory and subject to its jurisdiction.” The nondiscrimination provisions of the CCPR are also customary international law binding on the United States, forming part of U.S. law unless contrary to the Constitution or a statute. The Universal Declaration of Human Rights, which the United States approved in 1948, mandates nondiscrimination in religion and national origin, equal protection of the law, and protection from arbitrary interference in family life. 27 The American Declaration of the Rights and Duties of Man, which the United States approved when it signed and ratified the Charter of the Organization of American States the same year, has similar 26 Human Rights Committee, General Comment No. 18, supra note 19, para. 12 (emphasis added). 27 Universal Declaration of Human Rights, arts. 2, 7, 12, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948). 11 provisions in articles 6 and 17. 28 These nondiscrimination principles and the right to family unity have become sufficiently widespread and accepted by the international community that they have entered into customary international law in the present day. 29 2. The International Convention on the Elimination of All Forms of Racial Discrimination The International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) also bars discrimination based on national origin. The United States has been a party to the CERD since 1994. 30 Under article 2, paragraph (1)(a), each state party commits to refraining from and prohibiting all forms of racial discrimination, and each further undertakes “to engage in no act or practice of racial discrimination . . . and to ensure that all public authorities and public institutions, national or local, shall act in conformity with this obligation.” CERD defines “racial discrimination” to include distinctions and restrictions based on national origin. 31 With regard to immigration practices, CERD makes clear that states are free to adopt only such “nationality, citizenship or naturalization” 28 O.A.S. Res. XXX (1948), Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 13, at 13 (2010). 29 See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287, 329 (1995/96). 30 See 140 Cong. Rec. S7634-02 (daily ed., June 24, 1994). 31 Id. art. 1(1). 12 policies that “do not discriminate against any particular nationality.” 32 Like the nondiscrimination provisions of CCPR article 26, CERD article 2 does not limit its application to citizens or resident noncitizens. While CERD does not speak specifically to restrictions on entry of nonresident aliens, the general language of CERD expresses a clear intention to eliminate discrimination based on race or national origin from all areas of government activity: “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms . . . without distinction as to race, colour, or national or ethnic origin . . . .” 33 Article 4 of CERD further provides that state parties “[s]hall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination,” which (as noted) includes discrimination based on national origin. The Committee on the Elimination of Racial Discrimination, the body of independent experts appointed to monitor CERD’s implementation, interprets article 4 to require states to combat speech stigmatizing or stereotyping noncitizens generally, immigrants, refugees, and asylum seekers, 34 with statements by high-ranking officials causing “particular concern.” 35 In TBB-Turkish Union in Berlin/Brandenburg v. Germany, for example, the Committee specifically 32 Id. art. 1(3). Id. art. 5. 34 Committee on the Elimination of Racial Discrimination, General Recommendation No. 35: Combating Racist Hate Speech, para. 6, U.N. Doc. CERD/C/OC/35 (2013). 35 Id. para. 22. 33 13 determined that Germany violated the Convention when it failed to discipline or punish a minor government official who had inter alia drawn attention to low employment rates of Turkish and Arab populations in Germany, suggested their unwillingness to integrate into German society, and proposed that their immigration should be discouraged. 36 These statements, the Committee determined, implied “generalized negative characteristics of the Turkish population” and incited racial discrimination. 37 The legality of the EO in this case, and the proper interpretation of the statutes and constitutional provisions cited by the parties, should be assessed with those proscriptions in mind. Those international law principles require courts to reject any attempt by the President to define classes based on national origin or religion, and then to impose on those classes disparate treatment, except to the extent necessary to achieve a legitimate government purpose. C. Relevant Provisions of the Executive Order Section 2 categorically suspends immigration from six specified countries— Iran, Libya, Somalia, Sudan, Syria, and Yemen, and imposes special requirements on immigrants from Iraq. Section 2(a), moreover, authorizes the Secretary of 36 Comm. on the Elimination of Racial Discrim., Commun. No. 48/2010 (Feb. 26, 2013), U.N. Doc. CERD/C/82/D/48/2010. 37 Id. para. 12.6. 14 Homeland Security to demand “certain information” from “particular countries even if it is not needed from every country.” The EO thus makes an explicit distinction based on national origin that, unless necessary and narrowly tailored to achieve a legitimate government aim, would violate U.S. obligations under international law. In effect, the EO also makes a distinction based on religion, as plaintiffs have argued. Notably, every one of the designated countries has a population that is overwhelmingly Muslim, 38 and the EO does not suspend immigration from any state with a non-Muslim majority. International law is also relevant to Section 11 of the EO, which requires the Secretary of Homeland Security to “collect and make publicly available” certain information relating inter alia to convictions of terrorism-related offenses, government charges of terrorism, and “gender-based violence against women” by foreign nationals. The EO requires no publication of similar information relating to U.S. nationals. By mandating that the Secretary publish pejorative information about noncitizens without publishing comparable information about U.S. citizens, Section 11 makes a suspect distinction based on national origin. While Section 11 has not been challenged specifically by the plaintiffs, it may bear on the intent to discriminate, because the decision to publish derogatory information about noncitizens alone is stigmatizing, and appears to be motivated by a desire to 38 See Central Intelligence Agency, World Factbook, https://www.cia.gov/library/publications/ the-world-factbook/geos/xx.html. 15 characterize noncitizens as more prone to terrorism or gender-based violence than U.S. citizens. Apart from what it may indicate with respect to intent, a measure designed to stigmatize noncitizens cannot be proportionate and thus violates article 26 of the CCPR and articles 2 and 4 of the CERD. III. CONCLUSION For the foregoing reasons, amici request that the Court consider U.S. obligations under international law, which forms part of U.S. law, in evaluating the legality of the EO. RESPECTFULLY SUBMITTED this 17th day of April, 2017. 16 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 17 APPENDIX A The amici are nongovernmental organizations and legal scholars specializing in public international law and international human rights law. They have substantial expertise in issues directly affecting the outcome of this case. These amici are identified below. Organizations Amnesty International Limited International Justice Resource Center Human Rights Advocates Legal Aid Society (New York) Human Rights & Gender Justice Clinic, City University of New York School of Law MADRE National Law Center on Homelessness & Poverty International Association of Democratic Lawyers National Lawyers Guild Secular Communities of Arizona International Center for Advocates Against Discrimination T’ruah: The Rabbinic Call for Human Rights International Justice Project Individuals Institutional affiliations are listed for identification purposes only; opinions in this brief do not reflect those of any affiliated organization. 1. William Aceves, Dean Steven R. Smith Professor of Law, California Western School of Law 2. Dr. Johannes van Aggelen, former senior human rights official, United Nations, Office of the High Commissioner for Human Rights A-i 3. Wanda M. Akin, Esq., Co-Founder, International Justice Project 4. Shifa Alkhatib, Esq., Phoenix, AZ 5. Don Anton, Professor of International Law & Director, Law Future Centre, Griffith University Law School, Australia 6. Paige Berges, Esq., London, United Kingdom 7. Wendi Warren H. Binford, Associate Professor of Law; Director, Clinical Law Program, Willamette University 8. Carolyn Patty Blum, Interim Director, Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic, Benjamin N. Cardozo Law School 9. Anthony P.X. Bothwell, Esq., Law Offices of Anthony P.X. Bothwell 10. Bill Bowring, Professor & Director of the LLM/MA in Human Rights, University of London, Birkbeck College School of Law, U.K. 11. Raymond M. Brown, Co-Founder, International Justice Project 12. Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, New York University Law School 13. Elizabeth Burleson, Esq., Greenwich, CT 14. Roderick P. Bushnell, Esq., Law Offices of Roderick P. Bushnell, San Francisco, CA 15. Linda Carter, Professor of Law Emerita, University of the Pacific, McGeorge School of Law 16. Dr. Grace Cheng, Associate Professor of Political Science, Hawai’i Pacific University 17. Marjorie Cohn, Professor Emerita, Thomas Jefferson School of Law 18. Jorge Contesse, Assistant Professor, Rutgers (Newark) Law School A-ii 19. Michael D. Cooper, Managing Director, The Ploughshare Group LLC 20. Omar Dajani, Professor, University of the Pacific, McGeorge School of Law 21. Thomas A. Dallal, Esq., Deputy Director, Diakonia International Humanitarian Law Resource Center, Jerusalem 22. Margaret M. deGuzman, Associate Professor, Temple University, Beasley School of Law 23. Daniel H. Derby, Professor, Touro Law Center 24. Margaret Drew, Associate Professor & Director, Human Rights at Home Clinic, University of Massachusetts Law School 25. Ariel Dulitzky, Clinical Professor of Law, University of Texas School of Law 26. Monica Feltz, Esq., Executive Director, International Justice Project 27. Martin S. Flaherty, Leitner Family Professor of International Human Rights Law, Co-Director, Leitner Center for International Law & Justice, Fordham Law School 28. Daniel Fullerton, Counsel, Public International Law & Policy Group 29. Hannah Garry, Clinical Professor of Law & Director, International Human Rights Clinic, University of Southern California, Gould School of Law 30. Seyedeh Shannon Ghadiri-Asli, Legal Office, International Criminal Tribunal for the Former Yugoslavia 31. Peter Halewood, Professor of Law, Albany Law School 32. Alexandra Harrington, Adjunct Professor, Albany Law School 33. Deena Hurwitz, Esq., Charlottesville, VA A-iii 34. Dr. Alice de Jonge, Senior Lecturer, Monash University, Australia 35. Christine Keller, Esq., Legal Officer, International Criminal Tribunal for the Former Yugoslavia 36. Jocelyn Getgen Kestenbaum, Telford Taylor Visiting Clinical Professor of Law, Benjamin N. Cardozo School of Law 37. Nigel N.T. Li, President, International Law Association, Chinese (Taiwan) Branch; Chinese (Taiwan) Society of International Law 38. Robert Lutz, Paul E. Treusch Professor of Law, Southwestern Law School 39. Daniel Barstow Magraw, Senior Fellow, Foreign Policy Institute and Professorial Lecturer, Johns Hopkins University School of Advanced International Studies 40. Anna R. Maitland, Schuette Clinical Fellow, Center for International Human Rights, Northwestern University, Pritzker School of Law 41. Kathleen Maloney, Adjunct Professor, Lewis & Clark School of Law 42. Annette M. Martínez-Orabona, Adjunct Professor, Inter-American University of Puerto Rico, School of Law 43. Thomas M. McDonnell, Professor of Law, Pace University, Elisabeth Haub School of Law 44. Jeanne Mirer, Esq., President, International Association of Democratic Lawyers 45. Catherine Moore, LLB, LLM, Coordinator for International Law Programs, University of Baltimore School of Law 46. Steven S. Nam, Distinguished Practitioner, Center for East Asian Studies, Stanford University A-iv 47. Dr. Andrew Novak, Term Assistant Professor of Criminology, Law & Society, George Mason University 48. Natasha Lycia Ora Bannan, President, National Lawyers Guild 49. Aparna Polavarapu, Assistant Professor, University of South Carolina School of Law 50. Dianne Post, Esq., Central Arizona National Lawyers Guild 51. William Quigley, Professor of Law, Loyola University New Orleans, Loyola College of Law 52. Balakrishnan Rajagopal, Professor of Law & Development, Massachusetts Institute of Technology 53. Jaya Ramji-Nogales, I. Herman Stern Professor of Law, Temple University, Beasley School of Law 54. Nicole Rangel, Esq., Associate Legal Officer, International Criminal Tribunal for the Former Yugoslavia 55. Marny Requa, Associate Professor, Georgian Court University (Lakewood, NJ) 56. Nani Jansen Reventlow, Associate Tenant, Doughty Street Chambers, U.K. 57. Francisco J. Rivera Juaristi, Director, International Human Rights Clinic, Santa Clara University School of Law 58. Gabor Rona, Visiting Professor of Law, Cardozo Law School 59. Joshua Root, Esq., Instructor of Human Rights and International Law, Newport, RI 60. Leila Sadat, Henry H. Oberschelp Professor of Law; Director, Whitney R. Harris World Law Institute, Washington University School of Law A-v 61. Margaret L. Satterthwaite, Professor of Clinical Law, New York University School of Law 62. Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights, Stanford Law School 63. Mortimer Sellers, Regents Professor and Director, Center for International and Comparative Law, University of Baltimore School of Law 64. Corey Shenkman, Esq., Principal Investigator, Institute for Social Policy and Understanding 65. Dr. Anette Sikka, Asisstant Professor of Legal Studies, University of Illinois, Springfield 66. Matiangai Sirleaf, Assistant Professor, University of Pittsburgh Law School 67. David L. Sloss, Professor of Law, Santa Clara University Law School 68. Rachel A. Smith, International Law Association, American Branch, Program Director 69. Juliet S. Sorensen, Harry R. Horrow Professor of International Law, Northwestern University, Pritzker School of Law 70. Dr. Michael Stein, Executive Director & Visiting Professor, Harvard Law School Project on Disability 71. Milena Sterio, Professor of Law & Associate Dean, Cleveland State University, Cleveland-Marshall College of Law 72. Jessica Stern, Executive Director, OutRight Action International 73. Anastasia Sarantos Taskin, Esq., Taskin Law & Mediation 74. Juliet S. Sorensen, Harry R. Horrow Professor of International Law, Northwestern University, Pritzker School of Law A-vi 75. Beth Stephens, Distinguished Professor, Rutgers (Camden) Law School 76. Dr. Tara Van Ho, Assistant Professor, Aarhus University Department of Law 77. Constance de la Vega, Professor of Law, University of San Francisco 78. Meghan Waters, Esq., Denver, CO 79. Dr. Ralph Wilde, Reader, University College of London Faculty of Laws, U.K. 80. Matthew Zagor, Associate Professor, Australia National University College of Law 81. Katja Ziegler, Sir Robert Jennings Professor International Law, Director, Centre of European Law and Internationalisation, University of Leicester School of Law, U.K. A-vii APPENDIX B STATUTORY ADDENDUM TABLE OF CONTENTS Page I. EXECUTIVE ORDER 13780: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES ........................................................................................................II A. B. II. Section 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. .................... ii Section 11. Transparency and Data Collection. ................................ iii UNITED STATES CONSTITUTION ..................................................... IV A. B. III. Article II § 3. Messages; Convene and Adjourn Congress; Receive Ambassadors; Execute Laws; Commission Officers. ...........iv Article VI. Cl. 2. Supreme Law of Land. ............................................v RELEVANT TREATIES ............................................................................ V A. B. IV. International Convention on the Elimination of All Forms of Racial Discrimination ...........................................................................v 1. Article 2......................................................................................v 2. Article 4.....................................................................................vi 3. Article 5.....................................................................................vi International Covenant on Civil and Political Rights ...................... viii 1. Article 2.................................................................................. viii 2. Article 23................................................................................ viii 3. Article 26...................................................................................ix RELEVANT INTERNATIONAL DECLARATIONS .......................... IX A. Universal Declaration of Human Rights .............................................ix 1. Article 2.....................................................................................ix 2. Article 7.....................................................................................ix 3. Article 12...................................................................................ix B. American Declaration of the Rights and Duties of Man ......................x 1. Article 6......................................................................................x 2. Article 17....................................................................................x B-i I. EXECUTIVE ORDER 13780: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES A. Section 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country. (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order. B-ii (d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification. (e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States. (f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section. (g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order. B. Section 11. Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information: B-iii (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorismrelated activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons; (ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States; (iii) information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by foreign nationals; and (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report. Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report. II. UNITED STATES CONSTITUTION A. Article II § 3. Messages; Convene and Adjourn Congress; Receive Ambassadors; Execute Laws; Commission Officers. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he B-iv shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. B. Article VI. Cl. 2. Supreme Law of Land. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. III. RELEVANT TREATIES A. International Convention on the Elimination of All Forms of Racial Discrimination 1. Article 2 (1) States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; B-v 2. Article 4 States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) 3. Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; B-vi (c) Political rights, in particular the rights to participate in elections to vote and to stand for election on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one’s own, and to return to one’s country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) (ii) (iii) (iv) (v) (vi) (f) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; The right to form and join trade unions; The right to housing; The right to public health, medical care, social security and social services; The right to education and training; The right to equal participation in cultural activities; The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks. B-vii B. International Covenant on Civil and Political Rights 1. Article 2 (1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (2) Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. (3) Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. 2. Article 23 (1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. B-viii 3. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. IV. RELEVANT INTERNATIONAL DECLARATIONS A. Universal Declaration of Human Rights 1. Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 2. Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 3. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. B-ix B. American Declaration of the Rights and Duties of Man 1. Article 6 Every person has the right to establish a family, the basic element of society, and to receive protection therefore. 2. Article 17 Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights. B-x UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Effective 12/01/2016 No. ____________ 17-1351 International Refugee Assistance Project v. Trump 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): 3,614 [✔] 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 14-Point Times New Roman Font [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) s/ Elisabeth C. Frost Party Name Amici Curiae Int'l Law NGOs, et al. Dated: 4/17/2017 11/14/2016 SCC 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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