International Refugee Assistance Project v. Trump

Filing 144

MOTION by History Professors and Scholars, Amici Curiae Supporting Plaintiffs-Appellees for leave to file amici curiae brief court Order [108],court Order for initial hearing en banc (FRAP 35) [108]. Date and method of service: 04/19/2017 ecf. [1000064535] [17-1351] Carlos Singer

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No. 17-1351 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _____________________________ INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on behalf of itself; HIAS, INC., on behalf of itself and its clients; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself and its members; MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED MOHOMED; JOHN DOES #1 & 3; JANE DOE #2, Plaintiffs – Appellees, v. DONALD J. TRUMP, in his official capacity as President of the United States; DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE DIRECTORY OF NATIONAL INTELLIGENCE; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; DANIEL R. COATS, in his official capacity as director of National Intelligence, Defendants – Appellants. _____________________________ On Appeal from the United States District Court for the District of Maryland (8:17-cv-00361-TDC) _____________________________ HISTORY PROFESSORS AND SCHOLARS’ AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFFS-APPELLEES _____________________________ Katherine K. Huang* Carlos A. Singer HUANG YBARRA SINGER & MAY LLP 550 South Hope Street, Suite 1850 Los Angeles, CA 90071 Tel: (213) 884-4900 Email: Katherine.Huang@hysmlaw.com Counsel for Amici Curiae 0 TABLE OF CONTENTS STATEMENT OF INTEREST .................................................................................. 1 INTRODUCTION ..................................................................................................... 2 ARGUMENT ............................................................................................................. 5 I. NAZI GERMANY ................................................................................ 6 II. THE UNITED STATES’ PAST USES OF RACE- AND NATIONAL ORIGIN- BASED CRIME REPORTING TO EXCLUDE PARTICULAR IMMIGRANTS ....................................... 7 A. Use of Criminal Association to Exclude Italian Immigrants .................................................................................. 8 B. Use of Criminal Association to Exclude Chinese Immigrants ................................................................................ 11 C. Immigrants Portrayed as Sexual Threats to U.S. Citizens ........ 12 III. STEREOTYPING OF AFRICAN AMERICAN MEN AS RAPISTS ............................................................................................. 14 CONCLUSION ........................................................................................................ 16 i CASES City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985) ..............................................................................................5 North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) ................................................................................7 Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977) ..........................................................................................4, 6 Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............................................................................................. 5 OTHER AUTHORITIES Executive Order 13780 of March 6, 2017, Protecting the Nation from Foreign Terrorist Entry Into the United States, 82 Fed. Reg. 13209 ...................2 Executive Order 13768 of January 25, 2017, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 18 ........................................1, 3 PUBLICATIONS At America’s Gates: Chinese Immigration during the Exclusion Era, 1882 – 1943 (University of North Carolina Press, 2003) ...................................12 Chinese Immigrants, African Americans and Racial Anxiety in the United States, 1848-1882 (University of Illinois Press, 2003) ...........................13 Crime, Sexual Violence, and Clemency: Florida's Pardon Board and the Penal System in the Progressive Era (University Press of Florida, 2000)......................................................................................................13 Culling the Masses: The Democratic Roots of Racist Immigration Policy in the Americas (Harvard University Press, 2014) ..................................10 Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton University Press, 2005) ......................................................14 Italian Americans: Into the Twilight of Ethnicity (Prentice Hall, 1985) .................10 ’Judentum und Kriminalität’ – Rassistische Deutungen in kriminologischen Publikationen 1933-1945 .........................................................6 Queering the Color Line: Race and the Invention of Homosexuality in American Culture (Duke University Press, 2000) ..............................................14 Rassismus, Faschismus, Antifaschismus, eds. Manfred Weissbecker and Reinhard Kühnl (Papy Rossa Verlag, 2000) ..................................................6 Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation (Harvard University Press, 2013) ...................................................15 Re-Dressing America’s Frontier Past (University of California Press, 2012) ...................................................................................................................13 Studying the Jew: Scholarly Antisemitism in Nazi Germany (Harvard University Press, 2006) .........................................................................................7 ii The Crime of my Very Existence: Nazism and the Myth of Jewish Criminality (University of California Press, 2007) ..............................................6 The Opium Debate and Chinese Exclusion Laws in the NineteenthCentury American West (University of Nevada Press, 2007) ............................12 The Third Asiatic Invasion: Empire and Migration in Filipino America, 1898-1946 (New York University Press, 2011) .................................13 White Slave Crusades: Race, Gender, and Anti-Vice Activism, 18871917 (University of Illinois Press, 2006)............................................................13 Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Harvard University Press, 1998) ...........................................13 iii STATEMENT OF INTEREST Amici are professors who are experts in U.S. and world history. 1 They are compelled to submit this brief because of the troubling parallels between Executive Order 13780 and similar actions that have been taken in the past to stigmatize targeted populations, advance widespread inequities, and stir up hatred and violence. Although this appeal addresses whether the district court correctly enjoined enforcement of Section 2(c) of the Executive Order, amici submit that the discriminatory aspects of Section 11 of the Executive Order reveal the similarly unconstitutional nature of Section 2(c). Amici offer concrete examples of actual experience with race- or national origin-based criminal reporting like that in Section 11, to illustrate that such measures both cause discriminatory effect and are motivated by discriminatory animus, and thus are precisely the types of invidious actions that the United States Constitution is meant to guard against. The inclusion of Section 11’s discriminatory criminal reporting requirements in the Executive Order is evidence that the travel ban in Section 2(c) is similarly motivated by unjustifiable discriminatory intent and therefore unconstitutional. Amici are identified in Attachment 1. Amici are acting on their own behalf and not on behalf of any organizations with which they are associated. No party’s counsel authored the brief in whole or in part, and no person, entity, or organization other than counsel for amici contributed money that was intended to fund preparing or submitting this brief. 1 1 INTRODUCTION Throughout modern history, criminal reporting targeting particular groups have been used to demonize those groups and incite bigotry. Section 11 of Executive Order 13780 sets up just this type of hate-mongering. It directs the Secretary of Homeland Security to collect and make publicly available every 180 days the following information: (i) the number of foreign nationals who have been charged with, convicted of, or removed from this country based on terrorismrelated activity; (ii) the number of foreign nationals who have “been radicalized” and engaged in “terrorism-related acts;” (iii) 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…including information on the immigration status of foreign nationals charged with major offenses.” These provisions follow on the heels of another Executive Order that requires the Secretary of Homeland Security to, “on a weekly basis, make public a comprehensive list of criminal actions committed by aliens.” Executive Order 13768 of January 25, 2017, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 18, at § 9(b). The Court need go no farther than the plain language of Section 11 to find unlawful discrimination. The criminal reporting requirements apply to only one class of people: “foreign nationals.” Moreover, Section 11 singles out “honor 2 killings,” which are often associated with Islam and mistakenly believed to be a common, accepted ritual in Muslim communities. The Court undoubtedly also is aware of evidence of the Executive Branch’s comments equating immigrants and Muslims with criminals despite scientific and empirical evidence establishing that immigrants and Muslims do not, in fact, commit more crime or inflict more violence on women than non-Muslim individuals born on U.S. soil. Rather than repeat these arguments, this amicus brief instead provides historical context for Section 11’s criminal reporting requirements. Although it is not strictly necessary to delve into history to discern the unconstitutional aspects of this Executive Order, Amici respectfully submit that historical precedents aptly contextualize the animus behind the efforts embodied in the Executive Order and reveals its essentially discriminatory nature.2 From Nazi Germany to the postReconstruction American South to the exclusionary laws passed in the early twentieth century, historical studies have shown that crime reporting that disproportionately focuses on members of a social or political minority has routinely been used as a tool of mass stigmatization and criminalization, anchoring disparate human outcomes including nation-based exclusion from the United Cf. Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977) (“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. . . Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”). 2 3 States. In some instances, the association of a particular community with criminality, and the reinforcement of that association in the public mind through official government action and rhetoric, have led to widespread state and vigilante violence against members of the identified group. In this case, the targeted group consists of “foreign nationals.” As the Supreme Court recognizes, race, alienage, and national origin are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy--a view that those in the burdened class are not as worthy or deserving as others.” City of Cleburne, Tex. V. Cleburne Living Center, 473 U.S. 432, 440 (1985). History has borne this out, repeatedly demonstrating that laws and actions like Section 11 of the Executive Order serve no purpose but to brand people as criminals based solely on race or national origin. As such, Section 11 violates the bedrock principles of equal protection in the United States Constitution.3 History, as it often is, is instructive; laws and policies that have at their core an interest in isolating a group based on nothing more than status as foreign nationals are unconstitutional. See, e.g., City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985) (laws that classify people by race, alienage, or national origin are constitutional only if they are narrowly tailored to further a compelling state interest); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (laws violate equal protection principles if they are administered in a discriminatory fashion); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-65 (1977) (facially neutral law with a discriminatory effect violates equal protection if a discriminatory intent or purpose was a motivating factor for the law). 3 4 ARGUMENT While the reporting requirements in Section 11 of the Executive Order do not map squarely onto similar policies that have been imposed in the past, they do share one key element: the targeted association of a particular minority population with criminality.4 The historical examples discussed below demonstrate that equating groups with criminals is aimed at marginalizing, excluding, and suppressing the targeted groups, and do in fact cause severe dignitary harm to them. Moreover, the unlawfully discriminatory animus that motivated the reporting requirements was also the motivation for the travel ban, and thus the travel ban was properly found to be unconstitutional.5 I. NAZI GERMANY This Administration shows no sign of abating its interest in marginalizing people based on their citizenship status. Just weeks ago, the Washington Post reported that Administration lawyers “are examining federal privacy laws to determine ways to more freely share potentially incriminating personal information on immigrants among government agencies and release it publicly, including the nationality, immigration status, and criminal history of those swept up in enforcement raids.” See David Nakamura, “Blame game: Trump casts immigrants as dangerous criminals but the evidence shows otherwise,” Wash. Post, Mar. 24, 2017, available at https://www.washingtonpost.com/politics/blame-game-trumpcasts-immigrants-as-dangerous-criminals-the-evidence-showsotherwise/2017/03/23/f12dffdc-0f4d-11e7-9d5a-a83e627dc120_story.html? utm_term=.3edc5195b841. 5 See North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 22021 (4th Cir. 2016) (Plaintiffs challenging a law based on unlawful discrimination “need not show that discriminatory purpose was the sole or even a primary motive for the legislation, just that the it was a motivating factor.”) (quotation marks omitted). 4 5 In Nazi Germany, Jews (and other minority groups) were subject to targeted and disproportionate charges of criminality that quickly led to the mass stigmatization of those groups, the deprivation of rights and citizenship, and, finally, outright deportation and mass murder in concentration and death camps. The equation of Jews with criminality, which has a long European history, was a pervasive and recurrent part of Nazi rhetoric and policy. In the Nazi weekly Der Stürmer, for example, Jews were consistently portrayed as “born criminals” who undermined the well-being of Germany and defiled the German race. While Der Stürmer often featured pictures of individual Jews accused of crimes (along with their names and addresses), it primarily portrayed Jews as a group to be guilty of murder, degeneracy, sexual perversion, fraud, and rape. Throughout the 1930s and early 40s, Nazi organizations and governmentsupported research institutes undertook countless “criminological studies” to articulate what they considered to be the fundamental linkage between Jewishness and hereditary criminality.6 State-supported organizations such as the Institute for History of the New Germany and its affiliated Research Department for the Jewish Robert G. Waite, “’Judentum und Kriminalität’ – Rassistische Deutungen in kriminologischen Publikationen 1933-1945,” in: Rassismus, Faschismus, Antifaschismus, eds. Manfred Weissbecker and Reinhard Kühnl (Papy Rossa Verlag, 2000), 46-62; Michael Berkowitz, The Crime of my Very Existence: Nazism and the Myth of Jewish Criminality (University of California Press, 2007); Alan Steinweis, Studying the Jew: Scholarly Antisemitism in Nazi Germany (Harvard University Press, 2006). 6 6 Question, the Nazi Party Institute for Research on the Jewish Question, and the Reich Security Main Office, published statistics, anthropological studies, and research reporting on alleged “Jewish criminality.” Seizing on data purportedly demonstrating the inherency of criminality in Jews as a race, State authorities accused Jews of causing moral and spiritual degeneracy, defiling the German race, and weakening the German nation. This directly paved the way for more radical measures to exclude Jews from the political, social, economic, and cultural life of Germany, and ultimately to the systematic rounding-up, deportation, and annihilation of Jews. II. THE UNITED STATES’ PAST USES OF RACE- AND NATIONAL ORIGIN- BASED CRIME REPORTING TO EXCLUDE PARTICULAR IMMIGRANTS The United States has its own shameful history of using crime statistics and mass criminalization to justify excluding immigrants and to incite hatred, even violence, against targeted groups. In the late nineteenth and early twentieth century, the Anglo-American Protestant elite fueled crime scares associated with “criminal aliens” from particular European nations and constructed the image of opium-addicted deviants from China. One writer opined that the “overwhelming influx from south Europe” would “change our type of crime—murder, rape and sex immorality will become more common than the Anglo-American crimes of burglary, drunkenness and vagrancy.” Nativists manipulated crime statistics to 7 justify their xenophobic policies, resulting in the passages of the Chinese Exclusion Act of 1882 and the Immigration Act of 1924. A. Use of Criminal Association to Exclude Italian Immigrants The treatment of immigrants from Italy provides one example of how criminalization has been used as an exclusionary tactic. From the onset of largescale Italian immigration in the late nineteenth century, newspapers and government reports routinely slurred Italians as criminals. An 1891 editorial in The New York Times praised the lynchings of six Italians for eliminating “sneaking and cowardly Sicilians, the descendants of bandits and assassins, who have transported to this country the lawless passions, the cut-throat practices, and the oath-bound societies of their native country,” who were “to us a pest without mitigations.” Writing in the North American Review in 1908, New York’s police chief singled out Italian immigrants – particularly those from Southern Italy – and lamented that “our streets are overrun with foreign prostitutes, and foreign anarchists openly advocate murder and arson in our slums.” A joint House-Senate congressional commission known as the Dillingham Commission published a series of reports between 1907 and 1910 that further stigmatized Italians as criminals. Some of the reports drew on arrest and incarceration reports to argue that Italians were disproportionately likely to commit violent crimes. Other reports asserted that Southern Italians or Italians were 8 “regarded by many as racially undesirable” because of “their ignorance, low standards of living, and the supposedly great criminal tendencies among them.” Accepting the view of “the not unfounded belief that certain kinds of criminality are inherent in the Italian race,” the Dillingham Commission recommended reducing immigration from Italy and other countries in Southern and Eastern Europe. Senator Henry Cabot Lodge, a member of the public Dillingham Commission and of the private Immigration Restriction League, promoted a literacy test for immigrants knowing it would “bear most heavily upon the Italians, Russians, Poles, Hungarians, Greeks, and Asiatics, and very light, or not at all upon English- speaking emigrants or Germans, Scandinavians, and French.” After the literacy bill was passed in 1917, immigration from Italy fell from 283,738 in 1914 to 95,145 in 1920. To further reduce Southern European immigration while allowing entry to large numbers from northern and western Europe, the Emergency Quota Act of 1921 was passed to restrict the annual number of immigrants admitted from any country to three percent of the number of residents from that same country living in the United States in the 1910 census. This, in effect, permitted “old-stock” immigration from northern and western Europe at the prewar level, while cutting immigration from “new-stock” southern and eastern Europe to a fifth of its prewar level. 9 The Immigration Act of 1924 heightened the preference for “old-stock” European immigrants by rolling back the base year for calculating the quotas from 1910 to 1890. The 1924 act established an annual maximum quota for each nationality that would be two percent of the total population of that nationality as recorded in the 1890 census, with a minimum quota of 100. In practice, that meant that the share of the quotas reserved for southern and eastern Europeans fell from 45 to 16 percent. The House committee report adopting the 1890 baseline acknowledged that its goal was to reduce the flow of “races from southern and eastern Europe.” In the case of Italians, the annual quotas were reduced from 42,057 in 1921 to 3,845 in 1924. It was not until 1965 that Congress ended the national origins quota system.7 B. Use of Criminal Association to Exclude Chinese Immigrants During the late nineteenth and early twentieth centuries, journalists reported that opium threatened American society because it made users insane, promiscuous, and nonproductive. As the Reno Evening Gazette put it in February 1879, opium addiction was a “foul blot on society – a hideous, loathsome moral leprosy, paralyzing the mind and wrecking the body. It is a foul cancer, eating the vitals of society and destroying all who are drawn within its horrible spell.” For more information, see: FitzGerald, David and David Cook-Martín. Culling the Masses: The Democratic Roots of Racist Immigration Policy in the Americas (Harvard University Press, 2014); and Alba, Richard. Italian Americans: Into the Twilight of Ethnicity (Prentice Hall, 1985). 7 10 Although European immigrants and Anglo-Americans were active members of the opium trade, the press nearly exclusively reported Chinese immigrants as the purveyors of opium within the United States. According to one story, Chinese immigrants were “directly responsible for this blighting vice. They imported and introduced the curse, and at their door must it be laid with a thousand other moral sins.” When cities and states began passing anti-opium laws during the 1870s, such reporting disproportionately cast Chinese immigrants as a criminal class even though in actuality, very few Chinese immigrants were involved in the opium trade. With this disproportionate focus on the Chinese as opium dealers, antiopium campaigns were inevitably swept into a broader anti-Chinese movement. In 1882, Congress passed the Chinese Exclusion Act, which prohibited Chinese laborers from entering the United States for ten years. It was extended in 1892 and made permanent in 1902. The passage of the Chinese Exclusion Act, and the laws that followed, marked a pivotal turning point in U.S. history. Never before had a national group been banned from entry at U.S. borders, and it not only excluded immigrants at the borders, but it also assaulted the dignity of Chinese Americans already living within the United States and subjected them to increased state surveillance. The Chinese exclusion laws also set the foundation for a series of immigration bans 11 that, by 1924, expanded into a system of total Asian exclusion from the United States. The disproportionate reporting of Chinese immigrants as criminals thus buoyed the mass stigmatization of Chinese immigrants, cast them, as well as other Asian groups, as categorically unwelcome in the United States, and fueled the passage of racially-discriminatory immigration laws.8 C. Immigrants Portrayed as Sexual Threats to U.S. Citizens The stereotyping of immigrants from certain countries as sexual threats further fueled the hostility to the “new immigrants.” At first, the demonization of immigrants as sexually immoral focused on prostitution. One of the earliest immigration restriction laws, the Page Act of 1875, attempted to limit the importation of women for “the purposes of prostitution.” Particularly directed at Chinese women, it, too, helped pave the way for the Chinese Exclusion Act. In the 1920s, male Filipino laborers became associated with endangering white women and police in some cities were authorized to arrest Filipinos seen with white women. The vice investigations conducted in most major cities in the early twentieth century included exposés of southern European men depicted as procurers or pimps and of young female Jewish “sex delinquents” arrested for For more information, see: Erika Lee, At America’s Gates: Chinese Immigration during the Exclusion Era, 1882 – 1943 (University of North Carolina Press, 2003); Diana L. Ahmad, The Opium Debate and Chinese Exclusion Laws in the Nineteenth-Century American West (University of Nevada Press, 2007). 8 12 prostitution. While concerns about the immorality of immigrants typically identified the risks to young women, they also alluded to same-sex relations. A California physician wrote that sexually-transmitted diseases were once rare, but “since the influx of foreigners from those countries where unnatural practices are common, more cases are now seen.” On the West Coast, nativists warned that the Chinese would bring “paganism, incest, sodomy” to America. Authorities became particularly alarmed about “immoral boys who pander to the passions of vicious Greeks.” Although Greek immigrants represented less than one percent of the male population of Portland, Oregon at the turn of the twentieth century, they appeared in over eleven percent of the arrests in that city during a 1912 sex scandal over homosexuality.9 III. STEREOTYPING OF AFRICAN AMERICAN MEN AS RAPISTS For more information, see: Najia Aarim-Heriot, Chinese Immigrants, African Americans and Racial Anxiety in the United States, 1848-1882 (University of Illinois Press, 2003); Rick Baldoz, The Third Asiatic Invasion: Empire and Migration in Filipino America, 1898-1946 (New York University Press, 2011); Peter Boag, Re-Dressing America’s Frontier Past (University of California Press, 2012); Brian Donovan, White Slave Crusades: Race, Gender, and Anti-Vice Activism, 1887-1917 (University of Illinois Press, 2006); Matthew Frye Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Harvard University Press, 1998); Vivien M. L. Miller, Crime, Sexual Violence, and Clemency: Florida's Pardon Board and the Penal System in the Progressive Era (University Press of Florida, 2000); Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton University Press, 2005); and, Siobhan B. Somerville, Queering the Color Line: Race and the Invention of Homosexuality in American Culture (Duke University Press, 2000). 9 13 In the late nineteenth and early twentieth century, governmental authorities in the American South used rape charges to demonize, disenfranchise, and terrorize African Americans. Southern politicians found that rape fears could be an extremely useful tool for disenfranchising African American men, who had gained the vote in 1870 with the ratification of the Fifteenth Amendment. Arguing that the political authority of black men would lead to sexual access to white women, white politicians fomented fears of black lust while supporting the practice of vigilante lynching in the name of defending white womanhood. The press further encouraged the association between black men and rape. The Arkansas Gazette rarely reported rapes by black men before the 1860s, but after black enfranchisement, the paper begin to reprint reports from other papers about black men assaulting white women. In the North, The New York Times described rape as “a crime to which negroes are particularly prone," while the National Police Gazette repeatedly used the phrase “The Negro Crime” to headline accounts of the rape of white women. The paper identified rape as a “characteristic crime” of black men and then used this view to justify vigilantism. Depicting African Americans as natural rapists allowed southerners to maintain that blacks were incapable of the self-control and morality required for citizenship. This exclusionary construction in turn justified the disenfranchisement of black male voters, achieved through literacy tests, poll taxes, and all-white 14 primary elections. Southern politicians also exploited sexual fears to justify racial segregation. One argument for separating the races on public transportation was that the proximity in railway cars and other modes of transport provided opportunities for sexual contact between black men and white women. The deadliest effect of the demonization of black men as rapists was the epidemic of lynching. By the 1890s, the practice of replacing court trials with mob violence came to be associated primarily with the intimidation of former slaves and the charge of rape. Between 1882 and 1929, mobs seized over 3,000 African Americans who had been accused or convicted of a crime, ranging from insolence to consensual interracial sex to murder. By framing their terrorist acts as a defense of female purity --“lynching as the remedy for rape,” as one southern columnist wrote -- white supremacists effectively immobilized much of the opposition to the mob. In sum, the association of rape as “The Negro Crime” was used to justify the murder and political intimidation of newly enfranchised black men.10 CONCLUSION Historical studies illustrate that those in political power motivated by discriminatory intent often wield mass criminalization as a tool for excluding and marginalizing targeted groups. Historical examples caution us that Section 11’s disproportionate focus on crimes allegedly committed by “foreign nationals” and For more information, see Estelle Freeman, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation (Harvard University Press, 2013). 10 15 Muslims -- and the resulting (and intended) association of such groups with criminality -- is and will be just as damaging as past criminalization policies based on race or national origin. DATED: April 19, 2017 By: /s/ Carlos A. Singer Carlos A. Singer Katherine K. Huang* Carlos A. Singer HUANG YBARRA SINGER & MAY LLP 550 South Hope Street, Suite 1850 Los Angeles, CA 90071 Tel: (213) 884-4900 Email: Katherine.Huang@hysmlaw.com Carlos.Singer@hysmlaw.com *Admission pending Counsel for Amici Curiae 16 CERTIFICATION OF COMPLIANCE This brief is 3,660 words long, excluding the portions exempted by Fed. R. App. P. 32(f). The brief has been prepared in a proportionally spaced typeface using Times New Roman 14-point font. In preparing this certificate, I relied on the word count generated by Microsoft Word 2010. Dated: April 19, 2017 By: 17 /s/ Carlos A. Singer Carlos A. Singer Attachment 1 This brief was submitted by the following amici: Katherine Benton-Cohen is Associate Professor of History at Georgetown University. Her first book, Borderline Americans: Racial Division and Labor War in the Arizona Borderlands (Harvard University Press, 2009), explores the changing meanings of race in America. Her current research examines the history of the U.S. Congress’s Dillingham Commission, which conducted a massive study of immigration in the early twentieth century. Its findings paved the way for the immigration restrictions of 1920s that ended mass migration to the United States until the 1960s. Michael Berkowitz is Professor of Modern Jewish History at University College London. A native of New York, Professor Berkowitz focuses his scholarship on modern Jewish identity formation and political self-representations, 1881-1948; relationships between art, politics, and culture; perceptions of criminality and social deviance from early modern times to the present; Jews and German culture; ties between charity and nationalism; and modes of understanding and misunderstanding the Holocaust. Lila Corwin Berman is Professor of History at Temple University and holds the Murray Friedman Chair of American Jewish History. She is author of Metropolitan Jews: Politics, Race, and Religion in Postwar Detroit (University of Chicago, 2015). Her first book, Speaking of Jews: Rabbis, Intellectuals, and the Creation of an American Public Identity (California, 2009), was awarded recognition from the Center for Jewish History and the National Foundation for Jewish Culture, and was a finalist for the Jewish Book Council’s Sami Rohr Prize. Alicia Schmidt Camacho is Professor of American Studies and Ethnicity, Race, and Migration at Yale University, and serves as Associate Head of Ezra Stiles College. She is the author of Migrant Imaginaries: Latino Cultural Politics in the US-Mexico Borderlands (NYU Press, 2008), winner of the American Studies Association’s Lora Romero Prize, and articles about gender violence, migration, labor, and human rights in the Mexico-U.S. border region. Her current book project, The Carceral Border, examines the effects of social violence and militarized immigration enforcement on the North American migratory circuit. Margot Canaday is Associate Professor of History at Princeton University. Her first book, The Straight State: Sexuality and Citizenship in Twentieth Century America (Princeton, 2009), won the Organization of American Historians' Ellis 18 Hawley Prize, the American Political Science Association's Gladys M. Kammerer Award (co-winner), the American Studies Association's Lora Romero Prize, the American Society for Legal History's Cromwell Book Prize, the Committee on LGBT History's John Boswell Prize, the Lambda Literary Award for LGBT Studies, as well as the Association of American Law Schools’ Order of the Coif Biennial Book Award. John M. Efron is the Koret Professor of Jewish History at the University of California, Berkeley. His research interests include modern Jewish history and the cultural and social history of German Jewry. He is the author or co-author of numerous publications, including German Jewry and the Allure of the Sephardic (Princeton University Press, 2016) and The Jews: A History, with Matthias Lehmann and Steven Weitzman (Prentice Hall, 2009). Crystal N. Feimster, is an associate professor in the Department of African American Studies, the American Studies Program and History Department at Yale University, where she teaches a range of courses in 19th and 20th century African American history, women’s history, and southern history. Her manuscript, Southern Horrors: Women and the Politics of Rape and Lynching (Harvard University Press, 2009), examines the roles of both black and white women in the politics of racial and sexual violence in the American South. David Scott FitzGerald is Theodore E. Gildred Chair in U.S.-Mexican Relations, Professor of Sociology, and Co-Director of the Center for Comparative Immigration Studies at the University of California, San Diego. He is co-author of Culling the Masses: The Democratic Roots of Racist Immigration Policy in the Americas (Harvard University Press, 2014), which won best book awards from the American Political Science Association’s Migration and Citizenship Section, American Sociological Association’s (ASA) Political Sociology Section, and ASA International Migration Section. He is also the author of A Nation of Emigrants: How Mexico Manages its Migration (University of California Press, 2009) and Negotiating Extra-Territorial Citizenship (Center for Comparative Immigration Studies, 2000), and co-editor of six books on Mexico-U.S. migration. Estelle B. Freedman is the Edgar E. Robinson Professor in U.S. History at Stanford University. The recipient of fellowships from the National Endowment for the Humanities, the American Council of Learned Societies, the Guggenheim Memorial Foundation, and the Center for Advanced Study in the Behavioral Sciences, she has written ten books on the history of women, sexuality, and feminism, including No Turning Back: The History of Feminism and the Future of Women (Ballantine 2002); The Essential Feminist Reader (Modern Library, 2007); 19 Feminism, Sexuality, and Politics (University of North Carolina, 2006); and Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation (2013). She is the co-author (with John D’Emilio) of Intimate Matters: A History of Sexuality in America (University of Chicago Press, 3d ed., 2012) and has also written two award-winning books on the history of women's prison reform. Sharon Gillerman is Associate Professor of Jewish History at Hebrew Union College – Jewish Institute of Religion/Los Angeles. Her scholarship focuses on modern German and central European Jewish history with a particular interest in gender history, cultural studies, popular culture, and transnational history. Professor Gillerman's first book, Germans into Jews: Remaking the Jewish Social Body in the Weimar Republic, was the recipient of the 2010 Book Award from the Pacific Coast Branch of the American Historical Association. Glenda E. Gilmore is the Peter V. and C. Vann Woodward Professor of History, African American Studies, and American Studies at Yale University. She earned her PhD at the University of North Carolina at Chapel Hill. Her most recent book, co-authored with Tom Sugrue and published by W. W. Norton, is These United States: A Nation in the Making, 1890 to the Present. Her current book project is Bearden’s Collage: The Saga of an African American Family from Slavery to Civil Rights. She is the author of Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1898-1920 and Defying Dixie: The Radical Roots of Civil Rights, 1920-1950. Kelly Lytle Hernandez is an associate professor of History and AfricanAmerican Studies at the University of California, Los Angeles. She is one of the nation’s leading historians of race, policing, immigration, and incarceration in the United States. Her award-winning book, MIGRA! A History of the U.S. Border Patrol (University of California Press, 2010), explored the making and meaning of the U.S. Border Patrol in the U.S.-Mexico borderlands. Her forthcoming book, City of Inmates: Conquest and the Rise of Human Caging in Los Angeles (University of North Carolina Press, 2017), discusses the rise of incarceration as a social institution and its effect on certain populations. Susannah Heschel is the Eli Black Professor of Jewish Studies at Dartmouth College. Her scholarship focuses on Jewish-Christian relations in Germany during the 19th and 20th centuries, the history of biblical scholarship, and the history of anti-Semitism. Her numerous publications include Abraham Geiger and the Jewish Jesus (University of Chicago Press), which won a National Jewish Book Award, and The Aryan Jesus: Christian Theologians and the Bible in Nazi Germany (Princeton University Press). 20 Jonathan M. Hess is a Professor of German and the Moses M. and Hannah L. Malkin Distinguished Professor of Jewish History and Culture at the University of North Carolina, Chapel Hill. His research and teaching have focused on German cultural, intellectual and literary history from the eighteenth century on, with particular interests in both German-Jewish studies and the legacy of the Enlightenment. His book, Germans, Jews, and the Claims of Modernity (Yale University Press, 2002) dealt with the polemics between Germans and Jews over the heated issue of Jewish emancipation in the late eighteenth and early nineteenth centuries. Matthew Frye Jacobson is the William Robertson Coe Professor of American Studies and History at Yale University. He is the author of several books on race in the United States, including Roots Too: White Ethnic Revival in Post-Civil Rights America (2005); Barbarian Virtues: The United States Encounters Foreign Peoples at Home and Abroad, 1876-1917 (2000); and Whiteness of a Different Color: European Immigrants and the Alchemy of Race (1998). He is currently at work on his sixth book, Odetta’s Voice and other Weapons: The Civil Rights Era as Cultural History. His areas of expertise include race in U.S. political culture 1790-present, immigration and migration, and the juridical structures of U.S. citizenship. Karl Jacoby is professor of history at Columbia University and a specialist in environmental, borderlands, and Native American history. His books include Crimes Against Nature: Squatters, Poachers, Thieves and the Hidden History of American Conservation and Shadows at Dawn: A Borderlands Massacre and the Violence of History. Benjamin H. Johnson teaches in the history department at Loyola University Chicago. He is co-editor of the Journal of the Gilded Age and Progressive Era, and the author of numerous books and articles, including Revolution in Texas: How A Forgotten Rebellion and Its Bloody Suppression Turned Mexicans into Americans (Yale University Press, 2003); Bordertown: The Odyssey of an American Place (Yale University Press, 2008); and Bridging National Borders in North America (Duke University Press, 2010). Thomas Laqueur is the Helen Fawcett Professor of History at the University of California, Berkeley. His research interests include Britain since 1509 and the history of medicine. He has authored or co-authored numerous books and articles, including Religion and Respectability: Sunday Schools and Working Class Culture, 1780-1850 (Yale University Press, 1976) and Making Sex: Body and Gender from the Greeks to Freud (Harvard University Press, 1990). 21 Erika Lee is the Director of the Immigration History Research Center and the Rudolph J. Vecoli Chair in Immigration History at the University of Minnesota. Her scholarly specialties include migration, race and ethnicity; Asian Americans; transnational U.S. history; and immigration law and public policy. Her book, The Making of Asian America: A History (Simon & Schuster, 2015) was named a Best Nonfiction Book of 2015 by the Kirkus Reviews and a “10 Can’tMiss History Books of 2015” by History Buffs. She is also the author or co-author of Angel Island: Immigrant Gateway to America (Oxford University Press, 2010) and At America’s Gates: Chinese Immigration During the Exclusion Era, 18821943 (University of North Carolina Press, 2003) as well as many articles on immigration law and Asian American immigration. Paul Lerner is a Professor of History at the University of Southern California. He is a historian of nineteenth and twentieth-century Germany and Central Europe with particular interest in the history of the human sciences, Jewish history, gender, and consumer culture. He is the author of The Consuming Temple: Jews, Department Stores, and the Consumer Revolution in Germany, 1880-1949 (Cornell University Press, 2015), which pays particular attention to the notion of the “Jewish department store” and the ways that various movements deployed images of Jews to critique excessive consumption or mass consumer society. Michael A. Meyer is the Adolph S. Ochs Professor of Jewish History Emeritus at Hebrew Union College – Jewish Institute of Religion/Cincinnati. His books have won three Jewish Book Awards, and include The Origins of the Modern Jew: Jewish Identity and European Culture in Germany, 1749-1824 (1967); Response to Modernity: A History of the Reform Movement in Judaism (1988); and Jewish Identity in the Modern World (1990). In 2008, Jewish historians from the United States, Israel, and Europe honored him with a jubilee volume entitled Mediating Modernity: Challenges and Trends in the Jewish Encounter with the Modern World. Samuel Moyn is the Jeremiah Smith, Jr. Professor of Law and Professor of History at Harvard University. His areas of interest in legal scholarship include international law, human rights, the law of war, and legal thought, in both historical and current perspective. In intellectual history, he has focused on twentieth-century European moral and political theory. He has written several books in his fields of history, including The Last Utopia: Human Rights in History (Harvard University Press, 2010). David N. Myers is Professor & Sady and Ludwig Kahn Chair in Jewish History at the University of California, Los Angeles. He has written extensively in 22 the fields of modern Jewish intellectual and cultural history, with a particular interest in the history of Jewish historiography. He has authored Re-Inventing the Jewish Past: European Jewish Intellectuals and the Zionist Return to History (Oxford: 1995); Resisting History: Historicism and its Discontents in German-Jewish Thought (Princeton, 2003); and Between Jew and Arab: The Lost Voice of Simon Rawidowicz (Brandeis University Press, 2008). Khalil Gibran Muhammad is a professor of History, Race, and Public Policy at Harvard’s Kennedy School of Government and the Suzanne Young Murray Professor at the Radcliffe Institute for Advanced Study. His academic work focuses on racial criminalization and the origins of the carceral state. He is the author of The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Harvard University Press, 2010), which won the 2011 John Hope Franklin Publication Prize for the best book in American studies. Mae M. Ngai, Professor of History and Lung Family Professor of Asian American Studies, is a U.S. legal and political historian interested in questions of immigration, citizenship, and nationalism. She is author of the award winning Impossible Subjects: Illegal Aliens and the Making of Modern America (2004) and The Lucky Ones: One Family and the Extraordinary Invention of Chinese America (2010). Ngai has written on immigration history and policy for the Washington Post, New York Times, Los Angeles Times, the Nation, and the Boston Review. She is now working on Yellow and Gold: The Chinese Mining Diaspora, 18481908, a study of Chinese gold miners and racial politics in the nineteenth-century California, the Australian colony of Victoria, and the South African Transvaal. A. Naomi Paik is an assistant professor of Asian American studies at the University of Illinois, Urbana-Champaign. Her book, Rightlessness: Testimony and Redress in U.S. Prison Camps since World War II (UNC Press, 2016), reads testimonial narratives of subjects rendered rightless by the U.S. state through their imprisonment in camps. She has published articles in Social Text, Radical History Review, and Cultural Dynamics, has forthcoming pieces in Humanity and the edited collection, Guantánamo and the Empire of Freedom, and is developing a new project on military outsourcing. Her research and teaching interests include comparative ethnic studies; U.S. imperialism; U.S. militarism; social and cultural approaches to legal studies; transnational and women of color feminisms; carceral spaces; and labor, race, and migration. Stephen Pitti is Professor of History and American Studies at Yale University, where he is also the Director of the Yale Center for the Study of Race, Indigeneity, and Transnational Migration. His academic scholarship focuses on 23 Latinos in the United States, on immigration and migration, and on public history. A Distinguished Lecturer for the Organization of American Historians, he is a member of the National Park Service Advisory Board, the Chair of the National Historic Landmarks Committee, and the author of American Latinos and the Making of the United States (2012) and The Devil in Silicon Valley: Race, Mexican Americans, and Northern California (2003). Todd Presner is professor of Germanic Languages and Comparative Literature at the University of California, Los Angeles. He is the Sady and Ludwig Kahn Director of the UCLA Alan D. Leve Center for Jewish Studies and is also the Chair of the Digital Humanities Program. He is the author or co-author of multiple books, including Mobile Modernity: Germans, Jews, Trains (Columbia University Press, 2007), Muscular Judaism: The Jewish Body and the Politics of Regeneration (Routledge, 2007), and HyperCities: Thick Mapping in the Digital Humanities (Harvard University Press, 2014). Geoffrey Robinson is a professor of History at the University of California, Los Angeles where he teaches and writes about political violence, genocide, and human rights, primarily in Southeast Asia. His books include: The Dark Side of Paradise: Political Violence in Bali (Cornell University Press, 1995); East Timor 1999: Crimes against Humanity (Elsham & Hak, 2006); and ‘If You Leave Us Here, We Will Die’: How Genocide Was Stopped in East Timor (Princeton University Press, 2010). He previously worked at Amnesty International’s Research Department in London and served as a Political Affairs Officer with the United Nations in Dili, East Timor. His forthcoming book, The Killing Season: A History of the Indonesian Massacres, 1965-66, will be published by Princeton University Press in late 2017. Sarah Stein is a professor at the University of California, Los Angeles and holds the Maurice Amado Endowed Chair in Sephardic Studies. Her scholarship has ranged across the Yiddish and Ladino speaking diasporas and the British and French imperial, Russian, American, Ottoman and wider Mediterranean, Middle Eastern, and North African settings, but is always engaged with the cultural, economic, and political intricacies of modern Jewish culture. Stein’s most recent book is Extraterritorial Dreams: European Citizenship, Sephardi Jews and the Ottoman Twentieth Century (University of Chicago Press, 2016). Alan Steinweis is Professor of History and Miller Distinguished Professor of Holocaust Studies at the University of Vermont. He specializes in the history of Nazi Germany and the Holocaust. He is the author Art, Ideology, and Economics in Nazi Germany: The Reich Chambers of Music, Theater, and the Visual 24 Arts (University of North Carolina Press, 1993); Studying the Jew: Scholarly Antisemitism in Nazi Germany (Harvard University Press, 2006); and Kristallnacht 1938 (Harvard University Press, 2009). Elliott Young is Professor in the History Department and director of Ethnic Studies at Lewis and Clark College. His major scholarly publications include Alien Nation: Chinese Migration in the Americas from the Coolie Era through WWII (UNC Press, 2014), Catarino Garza’s Revolution on the Texas-Mexico Border (Duke University Press, 2004), and Continental Crossroads (Duke University Press, 2004). 25

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