International Refugee Assistance Project v. Trump

Filing 185

AMICUS CURIAE/INTERVENOR BRIEF by Cato Institute, Amicus Supporting Appellees in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 04/19/2017. [1000065226] [17-1351] Peter Jaffe

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17 - 1351 d 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 DIRECTOR OF NATIONAL INTELLIGENCE; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; DANIEL R. COATS, in his official capacity as Director of National Intelligence, Defendants-Appellants. (Caption continued on inside cover) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BRIEF OF AMICUS CURIAE CATO INSTITUTE IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE DANIEL BRAUN PETER JAFFE LAUREN KAPLIN FRESHFIELDS BRUCKHAUS DERINGER US LLP 700 13th Street, NW, 10th Floor Washington, DC 20005 (202) 777-4500 DAVID Y. LIVSHIZ KAREN WISWALL FRESHFIELDS BRUCKHAUS DERINGER US LLP 601 Lexington Avenue, 31st Floor New York, New York 10022 (212) 277-4000 Attorneys for Amicus Curiae Cato Institute STATE OF TEXAS; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF WEST VIRGINIA; PHIL BRYANT, Governor of the State of Mississippi; AMERICAN CENTER FOR LAW AND JUSTICE; SOUTHERN LEGAL FOUNDATION, INC.; AMERICAN CIVIL RIGHTS UNION; IMMIGRATION REFORM LAW INSTITUTE; U.S. JUSTICE FOUNDATION; CITIZENS UNITED; CITIZENS UNITED FOUNDATION; ENGLISH FIRST FOUNDATION; ENGLISH FIRST; PUBLIC ADVOCATE OF THE UNITED STATES; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; U.S. BORDER CONTROL FOUNDATION; POLICY ANALYSIS CENTER; VICTOR WILLIAMS, Amici Supporting Appellants, INTERFAITH COALITION; COLLEGES AND UNIVERSITIES; T.A.; COMMONWEALTH OF VIRGINIA; STATE OF MARYLAND; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF MASSACHUSETTS; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF N ORTH C AROLINA ; S TATE OF O REGON ; S TATE OF R HODE I SLAND ; S TATE OF VERMONT; STATE OF WASHINGTON; DISTRICT OF COLUMBIA; CITY OF CHICAGO; CITY OF LOS ANGELES; CITY OF NEW YORK; CITY OF PHILADELPHIA; CITY OF AUSTIN; JAMES A. DIOSSA, the Mayor of Central Falls, Rhode Island; CITY OF GARY; CITY OF IOWA CITY; SVANTE L. MYRICK, the Mayor of Ithaca; CITY OF JERSEY CITY; CITY OF MADISON; CITY OF MINNEAPOLIS; MONTGOMERY COUNTY; CITY OF OAKLAND; CITY OF PITTSBURGH; WILLIAM PEDUTO, the Mayor of Pittsburgh; CITY OF PORTLAND; CITY OF PROVIDENCE; JORGE O. ELORZA, the Mayor of Providence; CITY OF ST. LOUIS; CITY OF SAINT PAUL; CITY OF SAN FRANCISCO; COUNTY OF SAN FRANCISCO; CITY OF SAN JOSE; SANTA CLARA COUNTY; CITY OF SANTA MONICA; CITY OF SEATTLE; VILLAGE OF SKOKIE; CITY OF S OUTH B END ; C ITY OF T UCSON ; C ITY OF W EST H OLLYWOOD ; F ORMER NATIONAL SECURITY OFFICIALS; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC; SOUTHERN POVERTY LAW CENTER; AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE; NEW YORK UNIVERSITY; RODERICK & SOLANGE MACARTHUR JUSTICE CENTER; UNIVERSITY PROFESSORS AND HIGHER EDUCATION ASSOCIATIONS; INTERNATIONAL LAW SCHOLARS; NONGOVERNMENTAL ORGANIZATIONS, Amici Supporting Appellees. 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, et al. v. Trump, et al. Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, The Cato Institute ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ amicus 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 4 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 4 NO If yes, identify all such owners: 09/29/2016 SCC -1- YES 4 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 4 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/ Peter Jaffe Signature: ____________________________________ YES 4 NO Date: ___________________ 4/19/2017 The Cato Institute Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** April 19, 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: 4/19/2017 ________________________ (date) _______________________________ /s/ Peter Jaffe (signature) -2- TABLE OF CONTENTS Table of Contents ................................................................................................... ii Table of Authorities .............................................................................................. iii Interest of Amicus Curiae .......................................................................................1 Introduction ............................................................................................................2 Argument ................................................................................................................5 I. The Order’s actual purpose and effects are material to key legal questions in this case.................................................................................... 5 II. Available evidence suggests that the Order will not advance its stated purposes and supports enjoining the Order........................................10 A. B. The Entry Ban excludes individuals based on legal nationality rather than any meaningful connection to the six Designated Countries. .................................................................13 C. The Entry Ban’s stated criteria for designating nationalities are without basis. ..........................................................15 D. The Entry Ban is based on the false premise that the government needs the cooperation of foreign governments to process visa applications. .........................................20 E. III. The government’s stated justifications for the Entry Ban are misleading. ..................................................................................10 The government’s failure to pursue its goals consistently undermines its claim that it is pursuing vital interests in the least restrictive manner possible. .................................................22 The Entry Ban operates as a ban on visa issuance. ......................................25 Conclusion ............................................................................................................ 28 Certificate Of Compliance .................................................................................... 30 Certificate of Service ............................................................................................ 31 –ii– TABLE OF AUTHORITIES Page(s) Cases Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ....................................................................................... 7, 9 Blackwelder v. Millman, 522 F.2d 766 (4th Cir. 1975) ..............................................................................5 Bowen v. Roy, 476 U.S. 693 (1986) ...........................................................................................6 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) .......................................................................................9 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ............................................................................. 6, 7, 8, 22 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ...........................................................................................9 The Florida Star v. B.J.F., 491 U.S. 524 (1989) ..................................................................................... 8, 22 Gillette v. United States, 401 U.S. 437 (1971) ...........................................................................................6 Hunter v. Underwood, 471 U.S. 222 (1985) ...........................................................................................9 Larson v. Valente, 456 U.S. 228 (1982) ...........................................................................................7 McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005) ...........................................................................................6 McGowan v. Maryland, 366 U.S. 420 (1961) ...........................................................................................7 –iii– Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003) .................................................................... 2, 9, 10 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ................................................................................. 8, 22 United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008) ............................................................................ 10 Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ...........................................................................................9 Statutes 8 U.S.C. § 1152 .................................................................................................... 25 8 U.S.C. § 1181 .................................................................................................... 26 8 U.S.C. § 1182 ................................................................................................ 4, 26 8 U.S.C. § 1184 .................................................................................................... 26 8 U.S.C. § 1187 .............................................................................................. 26, 27 8 U.S.C. § 1361 .................................................................................................... 20 42 U.S.C. § 2000bb–1 .............................................................................................9 Regulations & Executive Orders 8 C.F.R. § 217.6 .................................................................................................... 27 Certification of Rescission of North Korea’s Designation as a State Sponsor of Terrorism, 73 Fed. Reg. 37,351 (Jun. 26, 2008) ............................. 16 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017)...................... 22, 24, 28 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ........................ passim –iv– Other Authorities Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, CATO AT LIBERTY (Jan. 26, 2017, 12:03 PM), https://www.cato.org/blog/guidetrumps-executive-order-limit-migration-national-security-reasons ............. 16, 18 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 CATO INSTITUTE POLICY ANALYSIS 1 (Sept. 13, 2016), https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf ...................... 18 Ann Louise Bardach, Our Man’s in Miami. Patriot or Terrorist?, WASH. POST, Apr. 17, 2005, at B3, available at http://www.washingtonpost.com/wp-dyn/articles/A582972005Apr16.html ............................................................................................... 17 Dennis Jett, One Man’s Terrorist, MIDDLE EAST POLICY COUNCIL, http://www.mepc.org/journal/one-mans-terrorist ............................................. 16 KARIN JOHANSON, CHRIS RICKERD & JOANNE LINE, RE: ACLU CONCERNS WITH THE “VISA WAIVER PROGRAM IMPROVEMENT AND TERRORIST TRAVEL PREVENTION ACT OF 2015” (H.R. 158), AMERICAN CIVIL LIBERTIES UNION (Dec. 7, 2015), https://www.aclu.org/sites/default/files/field_document/15_12_7_aclu_concerns_with_hr158_final_1.pdf ............................................ 14 KRISTIN ARCHICK, U.S.-EU COOPERATION AGAINST TERRORISM, CONGRESSIONAL RESEARCH SERVICE (Dec. 1, 2014), https://fas.org/sgp/crs/row/RS22030.pdf .......................................................... 19 Mehreen Zahra-Malik, Exclusive: Investigators Piece Together Portrait of Pakistani Woman in Shooting Massacre, REUTERS (Dec. 4, 2015, 5:29 PM), http://www.reuters.com/article/uscalifornia-shooting-pakistan-idUSKBN0TN1YX20151204 ............................. 17 Nahal Toosi, Civil Liberties Groups Slam Obama-Backed Visa Waiver Changes, POLITICO (Dec. 8, 2015), http://www.politico.com/story/2015/12/obama-visa-waiverchanges-backlash-215875 ................................................................................ 14 –v– NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE, INTRODUCTION TO THE NATIONAL SECURITY DIVISION’S CHART OF PUBLIC/UNSEALED INTERNATIONAL TERRORISM AND TERRORISMRELATED CONVICTIONS FROM 9/11/01 TO 12/31/15 (August 26, 2016), https://object.cato.org/sites/cato.org/files/wp-content/uploads/dojterrorismrelatedconvictions2015.pdf .............................................. 11 Nicolas Medina Mora & Mike Hayes, The Big (Imaginary) Black Friday Bombing, BUZZFEED NEWS (Nov. 15, 2015), https://www.buzzfeed.com/nicolasmedinamora/did-the-fbitransform-this-teenager-into-a-terrorist?utm_term=.tagpqAxoj#.yokLOPAZG ................................................................................................ 12 Nora Ellingsen & Lisa Daniels, What the Data Really Show about Terrorists Who “Came Here,” Part I: Introduction and Overview, LAWFARE (April 11, 2017, 10:29 AM), https://lawfareblog.com/what-data-really-show-about-terrorists-who-came-here-part-iintroduction-and-overview ............................................................................... 11 Nora Ellingsen & Lisa Daniels, What the Data Really Show about Terrorists Who “Came Here,” Part II: A Country-by-Country Analysis, LAWFARE (April 11, 2017, 10:30 AM), https://lawfareblog.com/what-data-really-show-about-terroristswho-came-here-part-ii-country-country-analysis ............................................. 11 POPULATION DIVISION, DEPARTMENT OF ECONOMIC & SOCIAL AFFAIRS, UNITED NATIONS, INTERNATIONAL MIGRANT STOCK 2015 (Dec. 2015), http://www.un.org/en/development/desa/population/migration/data/estimates2/estimates15.shtml ................................................... 13 RACHEL MADDOW SHOW, TRMS Exclusive: DHS Document Undermines Trump Case for Travel Ban, MSNBC (Mar. 2, 2017), http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhsdocument-undermines-trump-case-travel-ban .................................................. 24 RUTH ELLEN WASEM, IMMIGRATION: VISA SECURITY POLICIES, CONGRESSIONAL RESEARCH SERVICE (Nov. 18, 2015), https://fas.org/sgp/crs/homesec/R43589.pdf ..................................................................... 19 –vi– Shane Harris, Donald Trump Rejects Intelligence Report on Travel Ban—Tension with Intelligence Officials Rises as Homeland Security Contradicts White House on Terror, WALL ST. J. (Feb. 24, 2017, 8:53 PM), https://www.wsj.com/articles/donald-trumprejects-intelligence-report-on-travel-ban-1487987629 ..................................... 24 Tristram Korten & Kirk Nielsen, The Coddled “Terrorists” of South Florida, SALON (Jan. 14, 2008, 11:00 AM), http://www.salon.com/2008/01/14/cuba_2/ ...................................................... 17 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, PERSONS OF CONCERN, http://popstats.unhcr.org/en/persons_of_concern ............................ 14 U.S. CUSTOMS AND BORDER PROTECTION, ENTERING THE U.S. – DOCUMENTS REQUIRED FOR FOREIGN NATIONALS (INTERNATIONAL TRAVELERS) (last updated Jun. 21, 2016, 3:05 PM), https://help.cbp.gov/app/answers/detail/a_id/572/~/entering-theu.s.---documents-required-for-foreign-nationals-%28international .................. 26 U.S. DEPARTMENT OF HOMELAND SECURITY, CITIZENSHIP LIKELY AN UNRELIABLE INDICATOR OF TERRORIST THREAT TO THE UNITED STATES (Feb. 24, 2017), https://fas.org/irp/eprint/dhs7countries.pdf .................................................................................................. 24 U.S. DEPARTMENT OF STATE, CALCULATION OF THE ADJUSTED VISA REFUSAL RATE FOR TOURIST AND BUSINESS TRAVELERS UNDER THE GUIDELINES OF THE VISA WAIVER PROGRAM, https://travel.state.gov/content/dam/visas/Statistics/NonImmigrant-Statistics/refusalratelanguage.pdf ............................................. 21, 22 U.S. DEPARTMENT OF STATE, FOREIGN TERRORIST ORGANIZATIONS, https://www.state.gov/j/ct/rls/other/des/123085.htm ........................................ 15 U.S. DEPARTMENT OF STATE, STATE SPONSORS OF TERRORISM, https://www.state.gov/j/ct/list/c14151.htm ....................................................... 16 –vii– INTEREST OF AMICUS CURIAE The Cato Institute (Cato) is a nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. The Cato Institute believes that those values depend on holding government to rigorous standards of evidence and justification for its actions. Toward those ends, Cato conducts conferences, publishes books and studies, and issues the annual Cato Supreme Court Review. The Cato Institute and its scholars have significant experience studying immigration law and policy in the United States. The Cato Institute therefore believes that it can assist the Court by providing evidence relevant to a key aspect of Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) (Executive Order or Order): the so-called “Suspension of Entry for Nationals of Countries of Particular Concern” (section 2(c)) (Entry Ban or Ban).1 1 No counsel for a party authored this brief in whole or in part, and no such counsel or a party contributed money that was intended to fund preparing or submitting this brief. No person other than the amicus curiae, its members, or its counsel contributed money that was intended to fund preparing or submitting the brief. See Fed. R. App. P. 29(a)(4)(E). INTRODUCTION The government claims that the Entry Ban secures the United States against terrorist attacks and that it is a paradigmatic exercise of the President’s statutory authority to control entry into the United States. The Cato Institute respectfully disagrees and submits that these justifications do not withstand scrutiny: The Executive Order is not what it claims to be. As a procedural matter, the Court must consider real-world evidence about the Order’s stated justifications and effects because each is part of the prevailing legal tests governing the claims in this case. Under established doctrine, the threshold inquiries for Establishment Clause, Equal Protection Clause, and Religious Freedom Restoration Act (RFRA) challenges to government actions require courts to decide whether those actions are motivated by a sincere permissible purpose. If government actions fail that threshold inquiry, then prevailing doctrine requires courts to subject the actions to heightened scrutiny, which requires courts to consider evidence about whether the actions are appropriate means to advance the government’s interests. And if the Court concludes that the District Court did not abuse its discretion in finding that Plaintiffs-Appellees are likely to succeed on the merits, Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 254 (4th Cir. 2003), then the wellestablished black-letter test for granting injunctions requires courts to consider the –2– public interest, which, in turn, requires the consideration of the Order’s real-world impact. In short, if the Court concludes that the present case implicates any of these doctrines, it must consider evidence about the Order’s purposes and effects. (See Part I.) Should the Court reach any of these questions, it will conclude that realworld evidence supports neither the government’s stated justifications for the Order, nor the government’s claim that enjoining the Order will harm the public interest. The Entry Ban excludes from the United States persons who are nationals of six Muslim-majority countries: Iran, Syria, Somalia, Sudan, Libya, and Yemen (the Designated Countries). The government justifies this measure by claiming that nationals from these countries pose a heightened threat of terrorism and that it needs time to identify information necessary to process visa applications. Yet from 2001 to 2015, only four nationals of the Designated Countries were convicted of plotting or attempting a terrorist attack in the United States, and not a single person from these countries has killed anyone in a terrorist attack in the United States in over four decades. Nor does the government need a categorical ban on entry if it cannot gather information to adjudicate visa applications: Under the law, visa applicants bear the burden of proof. The government has no obligation to gather its own information to establish applicants’ eligibility, and it can—and does—reject anyone who cannot prove that they do not pose a threat. In any event, by the time –3– this Court will be deciding this case, the 90 days that the government claimed that it needed to improve vetting procedures will have long passed. (See Part II.) Similarly, the Entry Ban’s actual operation undermines the claim that it is merely a ban on entry pursuant to the President’s authority under 8 U.S.C. § 1182(f). Careful examination reveals that the Order is in fact a prohibition on the issuance of visas. It is therefore subject to the prohibition on discrimination in the issuance of visas on the basis of nationality. (See Part III.) –4– ARGUMENT I. THE ORDER’S ACTUAL PURPOSE AND EFFECTS ARE MATERIAL TO KEY LEGAL QUESTIONS IN THIS CASE. The Court should consider evidence of the Order’s actual purpose and effects—whether presented by those challenging the Order or by the government— because the legal tests in this case require it. The various plaintiffs in this case challenge the Executive Order under the Establishment Clause, Equal Protection Clause, and RFRA, and they obtained an injunction against the Order.2 The prevailing doctrines governing these claims and remedies differ, of course, but they share one thing in common: They require courts to consider real-world evidence about some combination of the purposes, operation, or effects of the government actions being challenged.3 To illustrate, a court applying prevailing Establishment Clause doctrine to a challenged government action must evaluate the authenticity of the government’s articulated secular purpose. The Establishment Clause “‘forbids subtle departures from neutrality,’ and ‘covert suppression of particular religious beliefs,’” even in 2 Although the trial court enjoined the Order based on statutory and Establishment Clause grounds and therefore did not reach Equal Protection or RFRA arguments, those arguments remain relevant because the Court may affirm the decision below on any grounds in the record. Blackwelder v. Millman, 522 F.2d 766, 771 (4th Cir. 1975). 3 The Cato Institute takes no position on whether the present case implicates the doctrines above, or whether the prevailing doctrinal tests are correct. –5– facially neutral laws. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (quoting Gillette v. United States, 401 U.S. 437, 452 (1971) and Bowen v. Roy, 476 U.S. 693, 703 (1986) (opinion of Burger, C.J.)). Courts applying the prevailing Establishment Clause test therefore must evaluate evidence about whether a government measure is motivated by a “secular purpose” that is “genuine, not a sham, and not merely secondary to a religious objective.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005). Moreover, courts probe the real purpose of state action by considering, as the government concedes, “the ‘operation’ of [the] action, as ‘the effect of a law in its real operation is strong evidence of its object.’” Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary Injunction and/or Temporary Restraining Order of the Executive Order at 27, Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361 (D. Md. Mar. 16, 2017) [hereinafter Defs.’ Mem. in Opp.] (quoting Church of the Lukumi, 508 U.S. at 535). And when the “openly available data support[s] a commonsense conclusion that a religious objective permeated the government’s action,” such action is impermissible. McCreary Cty., 545 U.S. at 863. Here, the government justifies the Executive Order by asserting the need to “protect[] the nation from foreign terrorist entry into the United States.” Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) [hereinafter Order]. Cato’s –6– research, as set forth below, belies that claim. That evidence therefore bears on the Establishment Clause analysis. Moreover, the Supreme Court has held that government actions that discriminate among religions require application of strict scrutiny. Larson v. Valente, 456 U.S. 228, 246 (1982). Strict scrutiny requires consideration of whether government action furthers a compelling government interest and whether the action is narrowly tailored to that interest. Id. at 246-47; see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Critical to the inquiry is whether the government action “visits ‘gratuitous restrictions’” that are unwarranted by the government’s claimed interest. Where government action imposes such overinclusive restrictions, “[i]t is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that [such] a law . . . seeks not to effectuate the stated governmental interests,” but rather to advance impermissible purposes. See, e.g., Church of the Lukumi, 508 U.S. at 538 (quoting McGowan v. Maryland, 366 U.S. 420, 520 (1961) (opinion of Frankfurter, J.)); see also Larson, 456 U.S. at 248 (“Appellants must demonstrate that the challenged . . . rule is closely fitted to further the interest that it assertedly serves.”). On the flip side, when a government action is materially underinclusive by failing to restrict activities “that endanger[] [the government’s] interests in a similar or greater degree than” those activities that the action does restrict, the –7– government undermines its claim that it is pursuing a compelling interest and raises the specter that the government is using its stated objective to pursue prohibited discrimination. Church of the Lukumi, 508 U.S. at 543. To assess whether a government action’s purported purpose is genuine, both law and common sense require courts to consider the extent to which the government has failed to take less-restrictive actions that would further its purpose. See, e.g., id. at 547 (“[A] law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”) (quoting The Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J. concurring in part and concurring in judgment); The Florida Star, 491 U.S. at 540 (“[T]he facial underinclusiveness of [the statute] raises serious doubts about whether Florida is, in fact, serving, with this statute, the significant interests which appellee invokes in support of [the statute].”); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2232 (2015) (holding a law limiting signage as impermissible under the First Amendment because it left other threats to the town’s asserted interests unprohibited). The evidence presented by Cato below, which demonstrates a complete disconnect between the stated purposes of the Order and its actual operation and effects, bears on precisely these issues. –8– Similar doctrines apply, with variations not relevant here, to the Fifth Amendment and RFRA challenges to the Order. See Adarand Constructors, 515 U.S. at 227 (as to Fifth Amendment); 42 U.S.C. § 2000bb–1; Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014) (as to RFRA). RFRA governs actions that place burdens on the exercise of religion, 42 U.S.C. § 2000bb–1; the Fifth Amendment’s equal protection doctrine governs government action that draws distinctions based on suspect classifications such as race, religion, or alienage, see City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Where such distinctions exist, a court may engage in “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977); see also Hunter v. Underwood, 471 U.S. 222, 227-28 (1985). If, at the end of its analysis, the Court concludes that the District Court did not abuse its discretion in finding that one or more of the challenges brought against the Order is likely to succeed, then it will need to review the appropriateness of the injunction ordered by the District Court,4 and that too requires the Court to consider real-world evidence about the Order’s purposes and effects. To obtain the injunction, IRAP and its co-plaintiffs had to show, among 4 In that case, the Court would review for abuse of discretion. Newsom, 354 F.3d at 254. –9– other things, that enjoining the Order would not harm the public interest—the fourth prong of the test for an injunction. Newsom, 354 F.3d at 261. Evidence of whether the Entry Ban reduces the risk of terrorist attack would be directly relevant to the government’s chief argument that enforcing the Ban is in the “public interest” due to “the continuing threat of international terrorism. Defs.’s Mem. in Opp. at 37 (citing United States v. Abu Ali, 528 F.3d 210, 240 (4th Cir. 2008)). II. AVAILABLE EVIDENCE SUGGESTS THAT THE ORDER WILL NOT ADVANCE ITS STATED PURPOSES AND SUPPORTS ENJOINING THE ORDER. If the real purpose of the Entry Ban is to protect against an attack in the United States by foreign terrorists, then the Ban fails. Its obvious design flaws mean that it will not reduce the risk of terrorism on U.S. soil. A. The government’s stated justifications for the Entry Ban are misleading. The justifications provided in section 1(h) of the Order do not support its sweeping prohibitions. The Order states that “hundreds of persons born abroad” were convicted of “terrorism-related crimes in the United States.” That statement says nothing about whether nationals of the six Designated Countries are more likely than others to engage in terrorism in the U.S. The statement is also misleading: The “hundreds” assertion in the Order is likely referencing a list produced by the Department of Justice’s National Security Division (NSD) that identifies 627 convictions for terrorism-related offenses from –10– 2001 through 2015. NAT’L SEC. DIV., DEP’T OF JUSTICE, INTRODUCTION TO THE NATIONAL SECURITY DIVISION’S CHART PUBLIC/UNSEALED INTERNATIONAL TERRORISM AND OF TERRORISM-RELATED CONVICTIONS FROM 9/11/01 TO 12/31/15 (August 26, 2016), https://object.cato.org/sites/cato.org/files/wp-content/uploads/dojterrorismrelatedconvictions2015.pdf [hereinafter NSD List]. The Order’s “hundreds” is inflated because the NSD List includes convictions of U.S.-born individuals, convictions for crimes that were not terrorist attacks (such as immigration fraud and lying to investigators), but where the investigation involved a link to international terrorism, and convictions related to terrorism outside of the United States.5 See id.; Nora Ellingsen & Lisa Daniels, What the Data Really Show about Terrorists Who “Came Here,” Part I: Introduction and Overview, LAWFARE (April 11, 2017, 10:29 AM), https://lawfareblog.com/what-data-really-show-aboutterrorists-who-came-here-part-i-introduction-and-overview; Nora Ellingsen & Lisa Daniels, What the Data Really Show about Terrorists Who “Came Here,” Part II: A Country-by-Country Analysis, LAWFARE (April 11, 2017, 10:30 AM), https://lawfareblog.com/what-data-really-show-about-terrorists-who-came-herepart-ii-country-country-analysis. Based on Cato’s review and analysis of the NSD 5 Convictions for terrorism offenses outside of the United States include convictions for “the use of weapons of mass destruction, conspiracy to murder persons overseas, [and] providing material support to . . .foreign terrorist organizations,” among other convictions. NSD List, supra. –11– List, only 26 of these were convictions of nationals of the Designated Countries for any kind of terrorism offense (whether or not the offense actually entailed plotting or attempting an attack).6 Moreover, during this period, only four nationals from the Designated Countries have been convicted of attempting or plotting a terrorist attack in the United States (including those convicted in state courts), and none of them killed anyone in the United States.7 Based on Cato’s analysis of the NSD List, nationals of 10 other countries had more convictions related to planning terrorist attacks in the United States than the nationals of any of the Designated Countries. Moreover, the only example in the Order itself of a national of one of the Designated Countries engaging in terrorism could not have been prevented by improved vetting: The Order refers to a Somalian refugee named Mohamed Mohamud who had concocted a plot with an undercover FBI agent to detonate a bomb in Portland (in which no one was ultimately killed); however, Mohamud had entered the United States as a child—a two-year-old. Nicolas Medina Mora & Mike Hayes, The Big (Imaginary) Black Friday Bombing, BUZZFEED NEWS (Nov. 15, 2015), https://www.buzzfeed.com/-nicolasmedinamora/-did-the-fbi- 6 This data is based on previously unpublished Cato Institute research and analysis, derived from the convictions on the NSD List. 7 Three of these were federal convictions identified on the NSD List, and the fourth was a state conviction identified by Cato. –12– transform-this-teenager-into-a-terrorist?utm_term=.tagpqAxoj#.yokLOPAZG [hereinafter Mora & Hayes, Black Friday Bombing]. While the claimed purpose of the Order is to “improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP,” Order § 1(a), no additional procedures could determine which two-year-olds will become terrorists years later. B. The Entry Ban excludes individuals based on legal nationality rather than any meaningful connection to the six Designated Countries. To the extent the Order is based on evidence at all, it is based on evidence regarding countries—more precisely, “conditions in six of the previously designated countries”—rather than nationals of those countries, who are the actual subjects of the Ban. Order § 1(e). But individuals often have the legal status of “national” of a country even if they have no meaningful connection to it, or a connection that is irrelevant under the circumstances. The converse is also true. A person may have a meaningful connection to a country despite lacking the status of “national.” Evidence relating solely to a country itself therefore cannot justify a ban on nationals of that country. According to the United Nations Population Division, 11.2 million nationals of the Designated Countries were living as migrants in another country in 2015. POPULATION DIV., DEP’T OF ECON. & SOC. AFFAIRS, UNITED NATIONS, –13– INTERNATIONAL MIGRANT STOCK 2015 (Dec. 2015), http://www.un.org/en/development/desa/population/migration/data/estimates2/estimates15.shtml. According to the United Nations High Commissioner for Refugees, 7.2 million nationals of these six countries were refugees or asylum seekers outside their country of birth in 2015. UNITED NATIONS HIGH COMM’R FOR REFUGEES, PERSONS OF CONCERN, http://popstats.unhcr.org/en/persons_of_concern (last visited Apr. 3, 2017). Nationals from Syria and Iran need not have even been born or lived in the country at all to possess their country’s nationality. KARIN JOHANSON, CHRIS RICKERD & JOANNE LINE, RE: ACLU CONCERNS WITH THE “VISA WAIVER PROGRAM IMPROVEMENT AND TERRORIST TRAVEL PREVENTION ACT OF 2015” (H.R. 158), AMERICAN CIVIL LIBERTIES UNION (Dec. 7, 2015), https://www.aclu.org/sites/default/files/field_document/15_12_7_aclu_concerns_with_hr158_final_1.pdf; Nahal Toosi, Civil Liberties Groups Slam Obama-Backed Visa Waiver Changes, POLITICO (Dec. 8, 2015), http://www.politico.com/story/2015/12/obamavisa-waiver-changes-backlash-215875. Legal nationality is therefore an inappropriately blunt tool for judging whether an individual actually has substantial ties to the country of nationality, let alone whether the individual poses any threat to the United States. –14– C. The Entry Ban’s stated criteria for designating nationalities are without basis. In any event, the government’s selection of those six countries does not appear to be based on any meaningful national security risk when viewed in light of recent history. Rather, there is a total disconnect between the countries chosen and countries whose nationals, historically, have committed acts of terrorism on U.S. soil. The Order asserts that the six Designated Countries were selected based on conditions within those countries, listing two situations to justify the designation: first, that the country is in the midst of conflict that involves a U.S.-listed Foreign Terrorist Organization (Somalia, Syria, Libya, and Yemen); and second, that the United States has recognized the government of the country as a State Sponsor of Terrorism (Iran, Sudan, and Syria). Order § 1(d)-(e); U.S. DEP’T OF STATE, FOREIGN TERRORIST ORGANIZATIONS, https://www.state.gov/j/ct/rls/other/des/123085.htm (last visited Apr. 17, 2017). The government states that either situation “increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States,” Order § 1(d), but offers no evidence for that claim. To the contrary, that a nation is a State Sponsor of Terrorism has not historically correlated with the likelihood of its nationals becoming terrorists in the United States. The United States currently recognizes only Iran, Sudan, and Syria –15– as State Sponsors of Terrorism, and there has not been a single death caused by terrorism on U.S. soil committed by a national of one of these three countries since at least 1975. Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, CATO AT LIBERTY (Jan. 26, 2017, 12:03 PM), https://www.cato.org/blog/guide-trumps-executive-order-limit- migration-national-security-reasons [hereinafter Nowrasteh, Guide] (showing zero terrorism murders committed by persons born in Iran, Syria, and Sudan); U.S. DEP’T OF STATE, STATE SPONSORS OF TERRORISM, https://www.state.gov/j/ct/list/c14151.htm (last visited Apr. 17, 2017). Since the United States began designating countries as State Sponsors of Terrorism in 1979, the United States has recognized a total of eight such countries: Cuba (1982-2015), Iraq (1979-82, 1990-2004), Iran (1984-present), Libya (1979-2006), North Korea (1988-2008), South Yemen (1979-1990), Sudan (1993-present), and Syria (1979-present). Dennis Jett, One Man’s Terrorist, MIDDLE EAST POLICY COUNCIL, http://www.mepc.org/journal/one-mans-terrorist (last visited Apr. 14, 2017); Certification of Rescission of North Korea’s Designation as a State Sponsor of Terrorism, 73 Fed. Reg. 37,351 (Jun. 26, 2008). From 1975 through 2015, nationals from these countries have killed only three people in the United States in acts of terrorism. Nowrasteh, Guide, supra. All three murders were committed by Cuban nationals in 1975 and 1976— that is, before the U.S. government designated Cuba (or any other country) as a –16– State Sponsor of Terrorism. Ann Louise Bardach, Our Man’s in Miami. Patriot or Terrorist?, WASH. POST, Apr. 17, 2005, at B3, available at http://www.washingtonpost.com/wp-dyn/articles/A58297-2005Apr16.html; Tristram Korten & Kirk Nielsen, The Coddled “Terrorists” of South Florida, SALON (Jan. 14, 2008, 11:00 AM), http://www.salon.com/2008/01/14/cuba_2/. Similarly, that a person is a national of a country in civil war has not predicted whether that person would present a terrorism risk. Research conducted by Cato demonstrates that, since 1975, there has been only one incident of terrorism on U.S. soil committed by someone whose country was in the midst of a civil war involving a foreign terrorist organization at the time of the offense: the 2015 shooting in San Bernardino, California committed in part by Pakistan-born (but Saudi-raised) Tashfeen Malik. Mehreen Zahra-Malik, Exclusive: Investigators Piece Together Portrait of Pakistani Woman in Shooting Massacre, REUTERS (Dec. 4, 2015, 5:29 PM), http://www.reuters.com/article/us-california-shootingpakistan-idUSKBN0TN1YX20151204. (Pakistan, which has had a long-simmering insurgency in some regions, is not among the Designated Countries.) Table 1 provides the number of deaths and the historical probability of death on U.S. soil from a terrorist attack by nationals of countries that meet the conditions the Order describes. –17– Table 1: Risk of Death by Terrorism by Nationality by Country Conditions, 1975-2015 Security Categories and Deaths Historical Annual Comparators Chance of Death Zero Zero Current States Sponsors of Terrorism 14 1 in 779.70 million States in Civil Wars 3,006 1 in 3.63 million Other Non-U.S. Countries 408 1 in 26.74 million United States Zero Zero Six Designated Countries Sources: Cato Institute calculations based on data cited in Nowrasteh, Guide, supra; Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 CATO INSTITUTE POLICY ANALYSIS 1, 1, 6 (Sept. 13, 2016), https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf [hereinafter Nowrasteh, Terrorism and Immigration]. As noted above, terrorists from State Sponsors of Terrorism did not kill anyone in terror attacks on U.S. soil from 1975 to 2015. In that period, the annual chance of dying at the hands of terrorists from states in civil war involving a foreign terrorist organization was 1 in 779.7 million. By comparison, the annual probability of death in an act of terrorism committed by other foreign nationals was 1 in 3.63 million. In other words, the historical chance of dying in an attack on U.S. soil committed by a foreign-born terrorist from a country that does not fit the government’s criteria was 214 times greater than being killed by one who did. The government’s misguided criteria for designating countries produces a bizarre result: Based on data from 1975 through 2015, no one has been killed in a terrorist attack on U.S. soil by nationals from any of the six Designated Countries since 1975. Nowrasteh, Guide, supra. Although 15 nationals of these countries –18– have been convicted of attempting or planning attacks in this timeframe, they caused no deaths, and only four nationals of these countries were convicted of attempting or planning attacks from 2001 to 2015, the time period on which the government appears to rely. While the future need not replicate the past, the government purports to base its security assessment on evidence of crimes committed in the past. But as discussed above, the historical record undermines, rather than supports, the government’s claims. Moreover, there are good reasons to believe that the risk of terrorism will be managed more effectively in the future: beginning after 9/11, the United States has revamped its visa screening process. To name but a few changes, it expanded and automated terrorist watch lists, instituted biometric identity verification, linked various agency databases, instituted Department of Homeland Security review of visa applications for terrorism links in many consulates worldwide, and expanded intelligence sharing with allied countries around the world. RUTH ELLEN WASEM, IMMIGRATION: VISA SECURITY POLICIES, CONGRESSIONAL RESEARCH SERVICE at 5-6, 13-20 (Nov. 18, 2015), https://fas.org/sgp/crs/homesec/R43589.pdf, KRISTIN ARCHICK, U.S.-EU COOPERATION AGAINST TERRORISM, CONGRESSIONAL RESEARCH SERVICE (Dec. 1, 2014), https://fas.org/sgp/crs/row/RS22030.pdf. These changes suggest that a categorical ban is not the least restrictive means to effectuate the government’s stated purpose. –19– Even more telling, however, is a simple fact: The Executive Order does not designate all countries fitting its stated criteria. As noted above, Pakistan is effectively engaged in a civil war involving a Foreign Terrorist Organization, but is not covered by the Order. This implies that the government’s stated criteria are not, in fact, a complete statement of its reasons for adopting the Ban. D. The Entry Ban is based on the false premise that the government needs the cooperation of foreign governments to process visa applications. The government further justifies the designation of countries for the Entry Ban by claiming that the six countries are “[un]willing[] or [un]ab[le] to share or validate important information about individuals seeking to travel to the United States.” Order § 1(d). It further states that the suspension is needed to allow time for the Secretary of Homeland Security to “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.” Id. § 2(a). These explanations rely on a false premise. It is applicants, and not the government, who bear the burden to produce information showing their eligibility for a visa. The government has no obligation to obtain this information on its own, and may exclude any individual who fails to meet this burden. 8 U.S.C. § 1361. All evidence indicates that consular officers already enforce this burden of proof and have reacted to the changing conditions in –20– each of the Designated Countries on a proper, individualized basis. For the past seven years, the B-1 visa refusal rate (the share of applicants denied a visa for any reason) for the excluded nationalities has been an average of 85 percent higher than for all other nationalities. U.S. DEP’T VISA REFUSAL RATE GUIDELINES OF THE FOR TOURIST OF STATE, CALCULATION AND OF THE ADJUSTED BUSINESS TRAVELERS UNDER THE VISA WAIVER PROGRAM, https://travel.state.gov/content/dam/- visas/Statistics/Non-Immigrant-Statistics/refusalratelanguage.pdf [hereinafter DEP’T OF STATE, ADJUSTED VISA REFUSAL RATE] (last visited Apr. 17, 2017). Table 2: B-1 Visa Refusal Rate (% of Applicants) by Country Country 2010 2011 2012 2013 2014 2015 2016 70 67 62 66 52 65 64 Somalia 28 33 42 46 60 63 60 Syria 42 27 33 39 41 53 52 Iraq 54 48 48 44 44 54 49 Yemen 39 31 38 48 42 39 45 Iran 14 31 39 34 34 43 41 Libya 33 41 45 48 42 40 37 Sudan 8 40 40 44 46 45 51 50 Average 26 25 24 24 23 24 25 All other countries Source: Cato Institute calculations based on data in DEP’T OF STATE, ADJUSTED VISA REFUSAL RATE, supra. These denial rates reflect in part the existing availability of documentary evidence from visa applicants. While the average visa denial rate for all other countries has remained relatively constant in recent years, the average denial rate of the six Designated Countries (plus Iraq) increased from 40% to 50% between 2010 and 8 Not weighted by number of applicants. –21– 2016—a rate increase of 25%. In particular, the conflicts in Libya and Syria resulted in refusal rates that more than doubled. Id. Based on Cato’s familiarity with the visa-application process, it believes that many of these rejections were likely a consequence of the inability of applicants to access documents and other evidence necessary to prove their eligibility for a visa, indicating that the government has no need to exclude nationalities on a categorical basis due to information deficits. E. The government’s failure to pursue its goals consistently undermines its claim that it is pursuing vital interests in the least restrictive manner possible. Finally, the government has failed to take less restrictive steps to protect national security, including steps mandated by the Order itself. That fact bears on whether the Executive Order in fact serves the important purposes that it purports to. See, e.g., Church of the Lukumi, 508 U.S. at 547 (“[A] law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” (quoting Florida Star, 491 U.S. at 541-42 (Scalia, J. concurring in part and concurring in judgment)); Florida Star, 491 U.S. at 540; Reed, 135 S. Ct. at 2232. Both the Order and the now-revoked Order, Exec. Order 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (the Revoked Order), suspended entry of refugees and of nationals from certain countries while the Secretary of Homeland Security produced a worldwide report with –22– recommendations to improve vetting and screening protocols. President Donald J. Trump, Executive Order: Protecting the Nation From Foreign Terrorist Entry, THE WHITE HOUSE (Jan. 27, 2017), https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. But the government apparently has not made meaningful efforts to improve vetting, as demonstrated by two facts: First, the duration of the current Order is precisely the same as that of the Revoked Order: 90 days for the Entry Ban. But by the time the second Order would have been made effective, 48 days had passed during which the government should have been working to improve vetting and screening protocols pursuant to the Revoked Order. Therefore, the duration of the current Order should have been reduced by a commensurate 48 days. That the duration has not been reduced suggests that the Government has not made progress improving vetting and screening protocols. Indeed, by the time the Court hears this case, the original 90-day period will have expired. Assuming that the Government has been improving vetting during this time, there will be no further reason for the Entry Ban. And if the Government has not made progress, that failure undermines the Government’s claims to be pursuing a compelling government interest in a properly tailored manner. –23– Second, the government apparently has not produced the required vetting reports. The Revoked Order required the Secretary of Homeland Security to submit a report that provides “a list of countries that do not provide adequate information” for vetting “within 30 days of the date of this order.” Revoked Order § 3(b). (The new Order requires the same, but within 20 days.) The Department of Homeland Security apparently produced two draft intelligence assessments—finding that “citizenship is an unlikely predictor of terrorism” and that “most foreign-born, U.S.-based violent extremists [are] radicalized after entering.” U.S. DEPARTMENT OF HOMELAND SECURITY, CITIZENSHIP LIKELY TERRORIST THREAT TO THE UNITED AN UNRELIABLE INDICATOR STATES (Feb. 24, OF 2017), https://fas.org/irp/eprint/dhs-7countries.pdf; RACHEL MADDOW SHOW, TRMS Exclusive: DHS Document Undermines Trump Case for Travel Ban, MSNBC (Mar. 2, 2017), http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhsdocument-undermines-trump-case-travel-ban. But President Trump reportedly dismissed these assessments as “not the intelligence assessment [he] asked for.” Shane Harris, Donald Trump Rejects Intelligence Report on Travel Ban—Tension with Intelligence Officials Rises as Homeland Security Contradicts White House on Terror, WALL ST. J. (Feb. 24, 2017, 8:53 PM), https://www.wsj.com/articles/donald-trump-rejects-intelligence-report-on-travel-ban-1487987629. There is no –24– evidence to indicate that the required report reviewing screening procedures was ever submitted. Accordingly, although issued as a means of “protecting the nation from foreign terrorist entry into the United States,” Cato’s research shows that the Executive Order does not further its purported goal. Should the court apply the prevailing doctrines under the Establishment Clause, Equal Protection, RFRA, and preliminary injunction analysis, it should consider Cato’s research, which weighs in favor of upholding the District Court’s injunction. III. THE ENTRY BAN OPERATES AS A BAN ON VISA ISSUANCE. Finally, the Entry Ban, though purporting merely to ban entry into the United States, in fact operates as a ban on the issuance of visas to nationals of the Designated Countries. As such, the Entry Ban is subject to section 202(a)(1)(A) of the Immigration and Nationality Act (INA), codified at section 1152(a)(1)(A) of Title 8, United States Code, which mandates that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s . . . nationality, place of birth, or place of residence.” Normally, the issuance of visas and the granting of admission to the United States are distinct activities. Persons can enter the United States without a visa under various circumstances, such as being a citizen or legal permanent resident, being the national of a country in the Visa Waiver Program, or seeking refugee –25– status or asylum. But for persons outside these categories, a visa is generally the prerequisite to seeking entry into the United States. See, e.g., 8 U.S.C. §§ 1181(a), 1182(a)(7), 1184, 1187; see also U.S. CUSTOMS AND BORDER PROTECTION, ENTERING THE U.S. – DOCUMENTS REQUIRED FOR FOREIGN NATIONALS (INTERNATIONAL TRAVELERS) (last updated Jun. 21, 2016, 3:05 PM), https://help.cbp.gov/app/answers/detail/a_id/572/~/entering-the-u.s.---documentsrequired-for-foreign-nationals-%28international. On the other hand, having a visa does not confer any other benefit. It merely gives a person a means of arriving legally at the border and seeking entry (which is not even guaranteed). Here, however, the Entry Ban’s operation is precisely coterminous with a ban on the issuance of visas. It does no more and no less. First, the Entry Ban targets only those nationals of the Designated Countries who were outside the United States on the effective date of the Order and who did not have a valid visa at certain specified times (the effective dates of the Order and its predecessor). Order § 3(a). The Entry Ban then exempts certain foreign nationals, namely, those with some other authorization to enter the United States. Id. at § 3(b). The Entry Ban therefore affects only persons from the Designated Countries who are seeking to enter based on newly-issued (or newly-reissued) –26– visas. In other words, the Entry Ban does no more than prohibit the issuance of visas.9 Conversely, the Entry Ban nullifies the only benefit conferred by a visa: the authorization to seek entry to the United States. More directly, the government concedes that the Order effectively prohibits the issuance of visas to foreign nationals subject to the Order. Brief for Appellants at 33, Int’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. Mar. 24, 2017) (“The State Department has accordingly long treated aliens covered by exercises of the President’s section 1182(f) authority as ineligible for visas.”). In other words, the Entry Ban also does no less than a prohibition on the issuance of visas would. Doing no more and no less than a prohibition on the issuance of visas would do, the substance of the Entry Ban becomes clear. For nationals of the designated countries, it is a ban on the issuance of visas. Indeed, the text of the Order indicates that it is intended to impact visa issuance. Specifically, the Order provides that its purpose is to “improve the screening and vetting protocols and procedures 9 Although there are situations in which persons may seek to enter the United States without a visa, neither is applicable to the persons covered by the Entry Ban. The Visa Waiver program already did not apply to persons from the designated countries, and the Refugee Program has been shut down by this very Order. 8 U.S.C. § 1187(a); 8 C.F.R. § 217.6; Order § 6. –27– associated with the visa-issuance process.” Order § 1(a).10 That the Order’s actual objective (and not just its effect) is to prohibit the issuance of visas to nationals of the Designated Countries is underscored by the authority provided in the Order for certain immigration officials, “[n]otwithstanding the suspension of entry[,] . . . to authorize the issuance of a visa” to certain foreign nationals of the Designated Countries. Order § 3(c) (emphases added). By allowing for visas to be issued in certain limited circumstances, this provision makes plain that the Entry Ban otherwise functions to prohibit the issuance of visas. Accordingly, it is subject to the INA’s anti-discrimination provision. CONCLUSION The Cato Institute respectfully submits that the Court should consider the foregoing evidence in assessing the statutory and constitutional challenges to the Executive Order and the government’s challenge to the preliminary injunction. The Court should affirm the District Court’s issuance of the preliminary injunction in this case. 10 The Revoked Order stated this purpose even more plainly, setting forth the ban on “entry” under the heading: “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.” Revoked Order § 3. –28– Dated: April 19, 2017 Washington, DC Respectfully submitted, By: /s/ Peter Jaffe FRESHFIELDS BRUCKHAUS DERINGER US LLP Daniel Braun Peter Jaffe Lauren Kaplin 700 13th Street, NW, 10th Floor Washington, DC 20005 David Y. Livshiz Karen Wiswall 601 Lexington Avenue, 31st Floor New York, NY 10022 Attorneys for Amicus Curiae Cato Institute –29– CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation under Fed. R. App. P. 29(a)(4) because, excluding items exempted under Fed. R. App. P. 32(f), it contains 6,086 words. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it uses a proportionally spaced Times New Roman typeface in 14-point size. Dated: April 19, 2017 /s/ Peter Jaffe Peter Jaffe Freshfields Bruckhaus Deringer US LLP Attorney for Amicus Curiae –30– CERTIFICATE OF SERVICE I, Peter Jaffe, hereby certify that I electronically filed the foregoing motion with the Clerk of the Court for the U.S. Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system on April 19, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Executed April 19, 2017, at Washington, District of Columbia. /s/ Peter Jaffe Peter Jaffe Freshfields Bruckhaus Deringer US LLP Attorney for Amicus Curiae –31–

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