Intl. Refugee Assistance v. Donald J. Trump

Filing 103

AMICUS CURIAE BRIEF by International Bar Associations Human Rights Institute in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194746] [17-2231, 17-2232, 17-2233, 17-2240] Donald Donovan [Entered: 11/17/2017 04:56 PM]

17-2231(L), 17-2232(CON), 17-2233(CON), 17-2240(XAP)

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 and its clients; HIAS, INC., on behalf of itself and its clients; JOHN DOES #1
& 3; JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on
behalf of itself and its members; MUHAMMED METEAB; ARAB AMERICAN ASSOCIATION
OF NEW YORK, on behalf of itself and its clients; YEMENI-AMERICAN MERCHANTS
ASSOCIATION; MOHAMAD MASHTA; GRANNAZ AMIRJAMSHIDI; FAKHRI
ZIAOLHAGH; SHAPOUR SHIRANI; AFSANEH KHAZAELI; JOHN DOE #4; JOHN DOE #5,
Plaintiffs-Appellees,
– and –
ALLAN HAKKY; SAMANEH TAKALOO; PAUL HARRISON; IBRAHIM AHMED MOHOMED,
Plaintiffs,
– v. –
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her official capacity as
Acting Secretary of Homeland Security; REX TILLERSON, in his official capacity as Secretary of
State; DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants-Appellants.

______________________________

(For Continuation of Caption See Reverse Side of Cover)
______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND AT GREENBELT

BRIEF OF AMICUS CURIAE INTERNATIONAL
BAR ASSOCIATION’S HUMAN RIGHTS INSTITUTE
IN SUPPORT OF PLAINTIFFS-APPELLEES
Ilana H. Eisenstein*
John M. Leitner*
Ryan S. Macpherson*
DLA PIPER LLP (US)
One Liberty Place
1650 Market Street, Suite 4900
Philadelphia, Pennsylvania 19103
[phone]

Donald Francis Donovan
David W. Rivkin*
Jennifer R. Cowan*
Elizabeth Nielsen*
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, New York 10022
[phone]

Attorneys for Amicus Curiae International Bar Association’s Human Rights Institute

*

Not Admitted to the Fourth Circuit Bar

17-2232
IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1; JANE DOE #2; JANE DOE #3;
JANE DOE #4; JANE DOE #5; JOHN DOE #6; IRANIAN STUDENTS’ FOUNDATION,
Iranian Alliances Across Borders Affiliate at the University of Maryland College Park,
Plaintiffs-Appellees,
– v. –
DONALD J. TRUMP, in his official capacity as President of the United States; ELAINE C.
DUKE, in her official capacity as Acting Secretary of Homeland Security; KEVIN K.
MCALEENAN, in his official capacity as Acting Commissioner of U.S. Customes and Border
Protection; JAMES MCCAMENT, in his official capacity as Acting Director of U.S. Citizenship
and Immigration Services; REX TILLERSON; JEFFERSON B. SESSIONS III, in his official
capacity as Attorney General of the United States,
Defendants-Appellants.

______________________________
17-2233

EBLAL ZAKZOK; SUMAYA HAMADMAD; FAHED MUQBIL; JOHN DOE #1;
JANE DOE #2; JANE DOE #3,
Plaintiffs-Appellees,
– v. –
DONALD J. TRUMP, in his official capacity as President of the United States;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES
DEPARTMENT OF STATE; ELAINE C. DUKE, In her official capacity as Acting Secretary of
Homeland Security; REX TILLERSON, In his official capacity as Secretary of State,
Defendants-Appellants.

______________________________
17-2240

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center,
Inc., on behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; JOHN
DOES #1 & 3; JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH
AMERICA, INC., on behalf of itself and its members; MUHAMMED METEAB; ARAB
AMERICAN ASSOCIATION OF NEW YORK, on behalf of itself and its clients; YEMENIAMERICAN MERCHANTS ASSOCIATION; MOHAMAD MASHTA; GRANNAZ
AMIRJAMSHIDI; FAKHRI ZIAOLHAGH; SHAPOUR SHIRANI; AFSANEH KHAZAELI;
JOHN DOE #4; JOHN DOE #5,
Plaintiffs-Appellants,
– and –
PAUL HARRISON; IBRAHIM AHMED MOHOMED; ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs,
– v. –
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED
STATES DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE;
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her
official capacity as Acting Secretary of Homeland Security; REX TILLERSON, in his official
capacity as Secretary of State; DANIEL R. COATS, in his official capacity as Director of
National Intelligence,
Defendants-Appellees.

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(a)(4)(A),
amicus curiae certifies that it has no parent corporations or any publicly held
corporations owning 10% or more of its stock.
/s/ Donald Francis Donovan
Donald Francis Donovan
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
[phone]
[e-mail]
Counsel for Amicus Curiae
Dated: November 17, 2017

TABLE OF CONTENTS
I.

RULE 29 STATEMENT OF INTEREST OF AMICUS CURIAE ....................1

II.

INTRODUCTION..............................................................................................1

III. ARGUMENT .....................................................................................................2
A. International Law Principles Should Be Considered In Assessing
The Proclamation. .........................................................................................2
B. Judicial Independence ...................................................................................3
1. Judicial Independence Is a Fundamental Principle of International
Law...........................................................................................................3
2. Judicial Independence Is Enshrined in U.S. Domestic Law. ...................5
3. Recent Actions by Defendants-Appellants Violate Core
Principles of Judicial Independence. .......................................................7
C. Due Process Rights Of Refugees ................................................................12
1. The United States Treatment Of Refugees Within U.S. Borders Is
Bound By International Law Obligations. .............................................12
2. The Proclamation Violates the Principle of Non-Discrimination
against Refugees ....................................................................................13
3. The Proclamation Violates the Due Process Rights of Refugees
Within U.S. Borders ...............................................................................14
4. The Proclamation Effectively Eliminates the Right to Petition for
Asylum ...................................................................................................16
IV. CONCLUSION ................................................................................................16

i

TABLE OF AUTHORITIES
Page(s)
Cases:
Augustin v. Sava,
735 F.2d 32 (2d Cir. 1984) .................................................................................. 16
Haitian Refugee Center v. Smith,
676 F.2d 1023 (5th Cir. 1982) ............................................................................. 16
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................ 12
Matthews v. Diaz,
426 U.S. 67 (1976) .............................................................................................. 15
Murray v. Schooner Charming Betsy,
6 U.S. 64 (1804) .................................................................................................... 3
Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................................ 15
United States v. Schooner Peggy,
5 U.S. (1 Cranch) 103 (1801) ................................................................................ 3
Wong Wing v. United States,
163 U.S. 228 (1896) ............................................................................................ 15
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ............................................................................................ 15
Zadvydas v. Davis,
533 U.S. 678 (2001) ............................................................................................ 15
United States Constitution:
Art. II, § 3 .................................................................................................................. 5
Art. III ........................................................................................................................ 5
Art. VI, cl. 2. ......................................................................................................... 2, 3
Fourteenth Amendment ............................................................................................ 6
Sixth Amendment ..................................................................................................... 6

ii

Statutes:
8 U.S.C. § 1158 .................................................................................................12, 16
8 U.S.C. § 1229a ..................................................................................................... 15
Rules:
Fed. R. App. P. 29(a) ................................................................................................ 1
Fed. R. App. P. 29(a)(4)(E) .................................................................................. 1n.1
International Materials:
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.,
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=I
V-9&chapter=4&lang=en ...............................................................................13n.9
International Covenant on Civil and Political Rights,
Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967),
999 U.N.T.S. 171 ................................................................................................... 6
OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS & THE INT’L BAR
ASS’N, HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE:
A MANUAL ON HUMAN RIGHTS FOR JUDGES, PROSECUTORS
AND LAWYERS 120 (2003),
www.ohchr.org/Documents/Publications/training9chapter4en.pdf .................. 4, 5
Refugee Convention and Protocol, Article 3 ........................................................... 13
Refugee Convention and Protocol, Article 4 ........................................................... 13
Universal Declaration of Human Rights Article 10 ................................................. 6

iii

News Articles:
Ann E. Marimow & Robert Barnes, Federal Appeals Court Maintains
Freeze Of Trump's Travel Ban. Attorney General Vows Supreme Court
Appeal, WASH. POST (Apr. 18, 2017),
https://www.washingtonpost.com/local/public-safety/federal-appealscourt-largely-maintains-freeze-of-trumps-travelban/2017/05/25/395aa394-365b-11e7-b4ee434b6d506b37_story.html?utm_term=.5744a41049b0 .................................10n.8
Brent Kendall, Trump Says Judge's Mexican Heritage Presents
‘Absolute Conflict,’ WALL ST. J. (June 3, 2016),
https://www.wsj.com/articles/donald-trump-keeps-up-attacks-onjudge-gonzalo-curiel-1464911442 ................................................................... 8n.3
Face the Nation Transcript February 12, 2017:
Schumer, Flake, Miller, CBS NEWS (Feb. 12, 2017),
https://www.cbsnews.com/news/face-the-nation-transcript-february12-2017-schumer-flake-miller/ ........................................................................ 9n.6
Full Transcript and Video: Trump News Conference,
N.Y. TIMES (Feb. 16, 2017),
https://www.nytimes.com/2017/02/16/us/politics/donald-trumppress-conference-transcript.html?_r=0 ................................................8n.2, 9, 9n.5
John Bowden, Trump Says He May Break Up 9th Circuit Court After
Rulings Go Against Him, THE HILL (Apr. 26, 2017, 5:32PM),
http://thehill.com/blogs/blog-briefing-room/330757-trump-says-hesabsolutely-considering-breaking-up-court-that-blocked ..................................... 11
Jordan Fabian, Trump Attacks Judges Weighing Travel Ban,
THE HILL (Feb. 8, 2017, 9:45AM)
http://thehill.com/homenews/administration/318451-trumpattacks-judges-weighing-travel-ban .................................................... 8n.2, 8-9n.4
Kristine Phillips, All the Times Trump Personally Attacked Judges And Why His Tirades Are ‘Worse Than Wrong,’
WASH. POST (Apr. 26, 2017),
https://www.washingtonpost.com/news/the-fix/wp/2017/04/26/all-thetimes-trump-personally-attacked-judges-and-why-his-tirades-areworse-than-wrong/?utm_term=.8b84ddb3528d .............................................10n.7

iv

Matt Zapotosky, Kalani Takase & Maria Sacchetti,
Federal Judge in Hawaii Freezes President Trump's New Entry Ban,
WASH. POST (Mar. 16, 2017),
https://www.washingtonpost.com/local/social-issues/lawyers-face-offon-trump-travel-ban-in-md-court-wednesdaymorning/2017/03/14/b2d24636-090c-11e7-93dc00f9bdd74ed1_story.html?tid=a_inl&utm_term=.8b84ddb3528d ................10n.7
Maureen Groppe, What Trump has said about Judge Curiel,
INDIANAPOLIS STAR (June 11, 2016),
https://www.indystar.com/story/news/2016/06/11/what-trump-hassaid-judge-curiel/85641242/ ............................................................................. 8n.3
Philip Rucker, Stephen Miller says White House will fight for travel ban,
advances false voter fraud claims, WASH. POST (Feb. 12, 2017)
https://www.washingtonpost.com/news/powerpost/wp/2017/02/12/step
hen-miller-says-white-house-will-fight-for-travel-ban-advances-falsevoter-fraud-claims/?utm_term=.9c4e3cc7459b ............................................... 9n.6
Other Authority:
Donald J. Trump (@realDonaldTrump),
TWITTER (Feb. 2, 2017, 4:03 AM),
https://twitter.com/realDonaldTrump/status/829299566344359936 ............... 8n.4
Donald J. Trump (@realDonaldTrump),
TWITTER (Feb. 4, 2017, 9:12 AM),
https://twitter.com/realDonaldTrump/status/827867311054974976 .................... 7
Donald J. Trump (@realDonaldTrump),
TWITTER (Feb. 5, 2017, 12:39 PM),
https://twitter.com/realDonaldTrump/status/828342202174668800 .................... 8
Donald J. Trump (@realDonaldTrump),
TWITTER (June 2, 2016, 9:54 AM)
https://twitter.com/realDonaldTrump/status/738413456118841345 ............... 8n.3
Donald J. Trump (@realDonaldTrump),
TWITTER (May 30, 2016, 2:45 PM),
https://twitter.com/realDonaldTrump/status/737399475509985280 ............... 8n.3

v

Donald J. Trump (@realDonaldTrump),
TWITTER (May 30, 2016, 2:55 PM),
https://twitter.com/realDonaldTrump/status/737402123453878272 ............... 8n.3
Office of the Press Secretary, Statement on Sanctuary Cities Ruling,
WHITEHOUSE.GOV (Apr. 25, 2017),
https://www.whitehouse.gov/the-press-office/2017/04/25/statementsanctuary-cities-ruling ......................................................................................... 10
Office of the Press Secretary, Statement Regarding Court Action
Affecting the President’s Proclamation Regarding Travel to the United
States by Nationals of Certain Countries, WHITEHOUSE.GOV (Oct. 17,
2017), https://www.whitehouse.gov/the-pressoffice/2017/10/17/statement-regarding-court-action-affectingpresidents-proclamation ...................................................................................... 11

vi

I.

RULE 29 STATEMENT OF INTEREST OF AMICUS CURIAE1
Amicus, the International Bar Association’s Human Rights Institute is the

human rights arm of the International Bar Association, the world’s leading
organization of international legal practitioners, bar associations, and law societies
with a membership of more than 80,000 individual lawyers spanning over 160
counties. Amicus helps to promote, protect and enforce human rights under a just
rule of law, and works to preserve the independence of judiciaries and the legal
profession worldwide. Amicus submits this brief in support of Plaintiffs-Appellees
in this matter in order to vindicate the public interest in ensuring a proper
understanding and application of international legal principles relevant to this case.
Pursuant to Federal Rule of Appellate Procedure 29(a), amicus submits this
brief without an accompanying motion for leave to file or leave of court because
all parties have consented to its filing.
II.

INTRODUCTION

This brief addresses international law principles that bear on the legality of
the Presidential Proclamation Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or Other Public1

No counsel for a party has authored this brief in whole or in part, and no party or
counsel for a party has made a monetary contribution intended to fund the
preparation or submission of the brief. No person other than amicus or its counsel
has made a monetary contribution to the preparation or submission of this brief.
Fed. R. App. P. 29(a)(4)(E).

1

Safety Threats of September 24, 2017 (the “Proclamation”), apparently
superseding Executive Order 13780 of March 6, 2017 (“EO2”), which replaces the
now-rescinded Executive Order dated January 27, 2017 (“EO1”) (collectively, the
“Travel Bans”).

Specifically, the Proclamation and Defendants-Appellants’

treatment of this case threaten judicial independence, the principle of nondiscrimination on the basis of national origin and religion, and due process rights
of refugees and aliens within U.S. borders, which are core principles of the
international law that are directly incorporated into U.S. law and which amicus
exists to support.
III.
A.

ARGUMENT

International Law Principles Should Be Considered In Assessing The
Proclamation.
International law, which includes treaties ratified by the United States as

well as customary international law, is part of United States law and must be
faithfully executed by the President and enforced by United States courts except
when clearly inconsistent with the United States Constitution or subsequent acts of
Congress. International law is relevant to resolving the legality of the Executive
Order.
Under the Supremacy Clause of the Constitution, “treaties made … under
the authority of the United States, shall be the supreme law of the land; and the
judges of every state shall be bound thereby.” U.S. CONST. art. VI, cl. 2. As

2

acknowledged by the Supreme Court in United States v. Schooner Peggy, 5 U.S. (1
Cranch) 103, 109 (1801), Article VI of the Constitution therefore makes treaties
the supreme law of the land. In addition, the Supremacy Clause of the Constitution
and long-established principles of statutory construction require acts of Congress
to be interpreted in a manner consistent with international law, whenever such a
construction is reasonably possible.

See, e.g., Murray v. Schooner Charming

Betsy, 6 U.S. 64 (1804).
The United States is a party to and bound by several international human
rights treaties relevant to the subject matter of the Proclamation. In assessing the
legality of the Proclamation, the Court should be cognizant of those treaty
obligations, and of customary international law, which should influence
constructions of the Constitution and statutes that protect judicial independence,
prohibit discrimination based on religion or national origin, and protect the due
process rights of refugees within the United States.
B.

Judicial Independence
1.

Judicial Independence Is a Fundamental Principle of International
Law.

Judicial independence is a fundamental legal principle recognized in
numerous international treaties. International human rights treaties and
declarations routinely incorporate a right to a fair trial before an independent and

3

impartial court or tribunal, which derives from the basic principles of the rule of
law and the separation of powers.
In 1985, the UN General Assembly unanimously endorsed the Basic
Principles on the Independence of the Judiciary (hereinafter the “Basic
Principles”). G. A. Res. 40/32 (Nov. 29, 1985), G.A.Res. 40/146 (Dec. 13 1985).
These principles represent “universally accepted views on this matter by the States
Members of the United Nations.” In adopting the Basic Principles, UN member
states recognized the importance of enshrining the integrity of the judiciary within
their countries’ law and culture through legislation, administrative action, and
public education. While the Basic Principles are viewed as only persuasive
authority, the United States has committed to respect them as a UN member state.
At its core, judicial independence means that “the Judiciary has to be
independent of the other branches of government, namely the Executive and
Parliament.” OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS & THE INT’L BAR
ASS’N, HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: A MANUAL ON HUMAN
RIGHTS FOR JUDGES, PROSECUTORS AND LAWYERS 120 (2003), available at
www.ohchr.org/Documents/Publications/training9chapter4en.pdf. The Basic
Principles place judicial independence at their forefront, mandating in Principle 1
that the “independence of the judiciary shall be guaranteed by the State and
enshrined in the Constitution or the law of the country. It is the duty of all

4

governmental and other institutions to respect and observe the independence of the
judiciary.” Id. at 120. Principle 2 of the Basic Principles introduces the
importance of “non-interference,” which requires that judges be permitted to
decide matters before them on the merits and without restrictions, improper
influences, inducements, pressures, threats or other interferences from any quarter
and for any reason.
Judges “have both a right and a duty to decide the cases before them
according to the law, free from fear of personal criticism or reprisals of any kind,
even in situations where they are obliged to render judgments in difficult and
sensitive cases.” Id. at 119. If individual judges are unable to make decisions
without interference from other branches of government, a judiciary that is pro
forma independent will be compromised.
2.

Judicial Independence Is Enshrined in U.S. Domestic Law.

Respect for the internationally-recognized principle of judicial independence
lies at the heart of the U.S. constitutional system. Indeed, the President, vested
with a constitutional obligation to faithfully execute the law, is himself obligated to
act in accordance with it. U.S. CONST. art. II, § 3. The principle of separation of
powers requires an independent judiciary. Article III of the United States
Constitution establishes the federal judiciary as a branch independent of both the
legislature and the executive. The Bill of Rights similarly relies upon an

5

independent judiciary for its guarantees: the right to a fair trial established for
criminal defendants in the Sixth Amendment and extended to all criminal
prosecutions in the states through the Due Process Clause of the Fourteenth
Amendment demands an independent and impartial judiciary.
The principle of judicial independence and impartiality is further enshrined
in a number of treaties to which the United States is a signatory. For example,
Article 10 of the Universal Declaration of Human Rights, adopted by the United
Nations (UN) General Assembly in 1948 and portions of which have been
accepted as customary international law, recognizes that “[e]veryone is entitled in
full equality to a fair and public hearing by an independent and impartial tribunal.”
The International Covenant on Civil and Political Rights (ICCPR), ratified by the
United States in 1992, stipulates that “in the determination of any criminal charge
against him, or of his rights and obligations in a suit of law, everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.” International Covenant on Civil and Political Rights,
Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171.
Regionally, Article 8(1) of the American Convention on Human Rights provides
that “every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal.” American
Convention on Human Rights, Nov. 21, 1969, 1144 U.N.T.S. 143.

6

3.

Recent Actions by Defendants-Appellants Violate Core Principles of
Judicial Independence.

Defendants-Appellants’ actions with regards to the Travel Bans threaten
judicial independence and seriously undermine the basic principles of the rule of
law and the separation of powers. In response to judicial decisions concerning the
Travel Bans, President Donald J. Trump and other Executive Branch officials have
questioned the validity of judicial rulings, denigrated the motives and integrity of
U.S. federal judges, and issued veiled threats which may be seen as having the
potential to influence future rulings.
There is a clear pattern of the Executive Branch appearing to interfere in
judicial rulings regarding the Travel Bans. On February 4, 2017, after U.S. District
Judge James L. Robart issued a stay temporarily blocking the enforcement of EO1,
President Trump unleashed a torrent of tweets questioning Judge Robart’s
legitimacy, including a statement that: “The opinion of this so-called judge, which
essentially takes law-enforcement away from our country, is ridiculous and will be
overturned!” Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 4, 2017, 9:12
AM), https://twitter.com/realDonaldTrump/status/827867311054974976. After
Judge Robart made the stay permanent, President Trump issued a veiled threat on
Twitter that Judge Robart would be held responsible for putting the country’s
security at risk, stating: “Just cannot believe a judge would put our country in such
peril. If something happens blame him and court system. People pouring in. Bad!”

7

Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 5, 2017, 12:39 PM),
https://twitter.com/realDonaldTrump/status/828342202174668800.2 In a statement
that was reminiscent of his prior personal attacks on another federal judge
following an adverse ruling in a private lawsuit,3 President Trump also questioned
Judge Robart’s integrity by asking whether his decision was motivated by political
considerations,4 stated that Judge Robart’s decision came from a “bad court” and

2

See also Jordan Fabian, Trump Attacks Judges Weighing Travel Ban, THE HILL
(Feb. 8, 2017, 9:45AM), http://thehill.com/homenews/administration/318451trump-attacks-judges-weighing-travel-ban. (“I think our security is at risk today.
And it will be at risk until such time that we are entitled and get what we are
entitled to as citizens of this country. We want security.”); Full Transcript and
Video: Trump News Conference, N.Y. TIMES (Feb. 16, 2017),
https://www.nytimes.com/2017/02/16/us/politics/donald-trump-press-conferencetranscript.html?_r=0. (“We had a court that gave us what I consider to be, with
great respect, a very bad decision. Very bad for the safety and security of our
country.”)
3
Donald J. Trump (@realDonaldTrump), TWITTER (May 30, 2016, 2:45 PM),
https://twitter.com/realDonaldTrump/status/737399475509985280; Donald J.
Trump (@realDonaldTrump), TWITTER (May 30, 2016, 2:55 PM),
https://twitter.com/realDonaldTrump/status/737402123453878272; Donald J.
Trump (@realDonaldTrump), TWITTER (June 2, 2016, 9:54 AM),
https://twitter.com/realDonaldTrump/status/738413456118841345; Brent
Kendall, Trump Says Judge's Mexican Heritage Presents ‘Absolute Conflict,’
WALL ST. J. (June 3, 2016), https://www.wsj.com/articles/donald-trump-keepsup-attacks-on-judge-gonzalo-curiel-1464911442. Maureen Groppe, What Trump
has said about Judge Curiel, INDIANAPOLIS STAR (June 11, 2016),
https://www.indystar.com/story/news/2016/06/11/what-trump-has-said-judgecuriel/85641242/.
4
Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 2, 2017, 4:03 AM),
https://twitter.com/realDonaldTrump/status/829299566344359936 (“If the U.S.
does not win this case as it so obviously should, we can never have the security
and safety to which we are entitled. Politics!”); Jordan Fabian, Trump Attacks
Judges Weighing Travel Ban, THE HILL (Feb. 8, 2017, 9:45AM),

8

from a circuit that was “in chaos” and “overturned 80 percent of the time”,5 and
implied that respect for the judicial system depended on the court’s support of
EO1. Full Transcript and Video: Trump News Conference, N.Y. TIMES (Feb. 16,
2017), https://www.nytimes.com/2017/02/16/us/politics/donald-trump-pressconference-transcript.html?_r=0.
Other Executive Branch officials similarly rejected Judge Robart’s decision
staying EO1, going so far as to question whether the judiciary should serve as a
check on Executive power. For example, Stephen Miller, a senior advisor to
President Trump, stated that: “the whole world will soon see, as we begin to take
further actions, that the powers of the president to protect our country are very
substantial and will not be questioned.”6
On March 16, 2017, following the issuance of a nationwide injunction
blocking the revised EO2 by U.S. District Judge Derrick K. Watson of Hawaii,
http://thehill.com/homenews/administration/318451-trump-attacks-judgesweighing-travel-ban. (“Courts seem to be so political and it would be so great for
our justice system if they could read a statement and do what’s right.”).
5
Full Transcript and Video, Trump News Conference, N.Y.TIMES (Feb. 16, 2017),
https://www.nytimes.com/2017/02/16/us/politics/donald-trump-press-conferencetranscript.html?_r=0.
6
Face the Nation Transcript February 12, 2017: Schumer, Flake, Miller, CBS
NEWS (Feb. 12, 2017), https://www.cbsnews.com/news/face-the-nationtranscript-february-12-2017-schumer-flake-miller/. See also Philip Rucker,
Stephen Miller says White House will fight for travel ban, advances false voter
fraud claims, WASH. POST (Feb. 12, 2017),
https://www.washingtonpost.com/news/powerpost/wp/2017/02/12/stephenmiller-says-white-house-will-fight-for-travel-ban-advances-false-voter-fraudclaims/?utm_term=.9c4e3cc7459b

9

President Trump called the ruling “terrible” and suggested that it was “done by a
judge for political reasons.”7 Attorney General Jefferson B. Sessions, III, similarly
condemned and marginalized the ruling, stating: “I really am amazed that a judge
sitting on an island in the Pacific can issue an order that stops the president of the
United States from what appears to be clearly his statutory and constitutional
power.”8 In April 2017, the White House issued a statement condemning another
federal court decision as “yet one more example of egregious overreach by a
single, unelected district judge,” by which “the rule of law suffered another blow”.
Office of the Press Secretary, Statement on Sanctuary Cities Ruling,
WHITEHOUSE.GOV (Apr. 25, 2017), https://www.whitehouse.gov/the-pressoffice/2017/04/25/statement-sanctuary-cities-ruling. President Trump also

7

Kristine Phillips, All the Times Trump Personally Attacked Judges - And Why His
Tirades Are ‘Worse Than Wrong,’ WASH. POST (Apr. 26, 2017),
https://www.washingtonpost.com/news/the-fix/wp/2017/04/26/all-the-timestrump-personally-attacked-judges-and-why-his-tirades-are-worse-thanwrong/?utm_term=.8b84ddb3528d; Matt Zapotosky, Kalani Takase & Maria
Sacchetti, Federal Judge in Hawaii Freezes President Trump's New Entry Ban,
WASH. POST (Mar. 16, 2017), https://www.washingtonpost.com/local/socialissues/lawyers-face-off-on-trump-travel-ban-in-md-court-wednesdaymorning/2017/03/14/b2d24636-090c-11e7-93dc00f9bdd74ed1_story.html?tid=a_inl&utm_term=.8b84ddb3528d.
8
Ann E. Marimow & Robert Barnes, Federal Appeals Court Maintains Freeze Of
Trump's Travel Ban. Attorney General Vows Supreme Court Appeal, WASH.
POST (Apr. 18, 2017), https://www.washingtonpost.com/local/publicsafety/federal-appeals-court-largely-maintains-freeze-of-trumps-travelban/2017/05/25/395aa394-365b-11e7-b4ee434b6d506b37_story.html?utm_term=.5744a41049b0.

10

indicated that he was considering restructuring the U.S. Court of Appeals for the
Ninth Circuit. John Bowden, Trump Says He May Break Up 9th Circuit Court
After Rulings Go Against Him, THE HILL (Apr. 26, 2017, 5:32PM),
http://thehill.com/blogs/blog-briefing-room/330757-trump-says-hes-absolutelyconsidering-breaking-up-court-that-blocked.
The Executive Branch has continued this pattern with the present
Proclamation. After Judge Watson issued a temporary restraining order on
October 17, 2017 the White House issued a statement saying that: “Today’s
dangerously flawed district court order undercuts the President’s efforts to keep the
American people safe and enforce minimum security standards for entry into the
United States.” Office of the Press Secretary, Statement Regarding Court Action
Affecting the President’s Proclamation Regarding Travel to the United States by
Nationals of Certain Countries, WHITEHOUSE.GOV (Oct. 17, 2017),
https://www.whitehouse.gov/the-press-office/2017/10/17/statement-regardingcourt-action-affecting-presidents-proclamation.
The cumulative impact of these statements has been to undermine judicial
independence by creating an appearance of attempted political interference or
intimidation of the judiciary by the Executive Branch.

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C.

Due Process Rights Of Refugees
1.

The United States Treatment Of Refugees Within U.S. Borders Is
Bound By International Law Obligations.

In the wake of World War II, a series of international law instruments
standardized, codified, and advanced the recognition and humane treatment of
refugees around the world. Most notable is the Convention Relating to the Status
of Refugees (the “Refugee Convention”), to which 145 nations are party.
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
While the United States is not a party to the Refugee Convention, it later assumed
the obligations set forth in the Refugee Convention by ratifying the United Nations
Protocol Relating to the Status of Refugees (the “Protocol”), which incorporates
the Refugee Convention’s key terms. Protocol Relating to the Status of Refugees,
Jan. 31, 1967, 60 U.N.T.S. 267. The United States Refugee Act of 1980 (the
“Refugee Act”) provided the domestic statutory basis by which the United States
simultaneously affirmed and complied with its obligations under the Protocol (and,
by extension, the Refugee Convention) by acting “to bring United States refugee
law into conformance with the [Protocol].” INS v. Cardoza-Fonseca, 480 U.S.
421, 436 (1987).
The Refugee Convention and other international law agreements commit the
United States to providing due process protections to refugees within its borders,
and prohibit the United States from discrimination against refugees wherever they

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may be found on the basis of national origin or religion.9 Moreover, our treaty
obligations and federal law requires refugees, once present in the United States, to
be accorded due process.
2.

The Proclamation Violates the Principle of Non-Discrimination
against Refugees

Article 3 of the Refugee Convention and Protocol bars discrimination
against refugees on the basis of race, religion or country of origin. That nondiscrimination provision applies to refugees both within and outside a signatory’s
borders. Convention Relating to the Status of Refugees, 28 July 1951, 189
U.N.T.S. 137. Likewise, states-parties agree that refugees within their territorial
limits will be treated “at least as favourabl[y]” as their nationals “with respect to
freedom to practice their religion” and religious education for their children. Id.,
Art. 4.
The Proclamation and the Executive Order of October 24, 2017 (“EO
13815”) violate the letter and spirit of those international commitments by
imposing stringent restrictions on refugee admissions in a manner that
discriminates on the basis of national origin and religion. Although it does not

9

The treatment of refugees may implicate other international rules as well. See
e.g. Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85., available at
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV9&chapter=4&lang=en.

13

continue the suspension of the refugee admissions program, the Proclamation,
along with the recent EO 13815, subjects refugees to “enhanced vetting,” based on
their national origin and religion. The discriminatory intent and effect of the
Proclamation and EO 13815 violate the commitment of the United States under the
Refugee Convention and Protocol not to discriminate against refugees on those
bases.
3.

The Proclamation Violates the Due Process Rights of Refugees Within
U.S. Borders

Under the Refugee Convention, as incorporated and amended by the
Protocol to which the United States is a party, signatories agree to afford refugees
within their borders rights of access to courts and due process regarding any
decision to expel refugees. Convention Relating to the Status of Refugees, July 28,
1951, 189 U.N.T.S. 137. In particular, Article 32 delineates the due process
requirements for refugees facing expulsion from a county and provides that (1) a
decision to expel a refugee “shall be reached in accordance of due process of law;”
(2) except where reasons of national security require otherwise, a refugee must be
allowed to submit evidence to clear himself and to appeal to and be represented
before competent authority; and (3) once a decision has been made to expel a
refugee, a refugee must be given “a reasonable period within which to seek legal
admission into another country.”

14

Moreover, it is well-settled that aliens within the territorial jurisdiction of the
Unites States are entitled to due process protections, including in deportation
proceedings. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“These
provisions [in the Fourteenth Amendment] are universal in their application, to all
persons within the territorial jurisdiction, without regarding to any differences of
race, or color, or of nationality.”); Wong Wing v. United States, 163 U.S. 228, 238
(1896) (concluding that “all persons within the territory of the United States” are
entitled to the protections guaranteed by the Fifth Amendments and “even aliens
shall not … be deprived of life, liberty, or property without due process of law”);
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (due process “applies to all ‘persons’
within the United States, including aliens, whether their presence here is lawful,
unlawful, or permanent”); Plyler v. Doe, 457 U.S. 202, 210 (1982); Matthews v.
Diaz, 426 U.S. 67, 77 (1976). The Immigration and Nationality Act (INA), which
provides procedures for the admission and exclusion of aliens, also provides aliens
with certain due process rights. See, e.g., 8 U.S.C. § 1229a (setting forth the
procedures for immigration proceedings and the affirmative rights for aliens
subject to removal proceedings).
By placing a blanket ban on all aliens from certain countries, the
Proclamation effectively eliminates the right to due process guaranteed by the
Constitution and the INA to all aliens within the United States.

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4.

The Proclamation Effectively Eliminates the Right to Petition for
Asylum

The Refugee Act established a statutory right to seek asylum in the United
States. 8 U.S.C. § 1158. Although the Refugee Act does not address an asylum
seeker’s due process rights explicitly, and although the decision to grant asylum
remains discretionary, courts have held that the Refugee Act created a substantive
right to petition for asylum. See Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984).
Courts have held that this right to petition for asylum is a sufficient interest to
“invoke the guarantee of due process.” Haitian Refugee Center v. Smith, 676 F.2d
1023, 1039 (5th Cir. 1982).
By placing a blanket ban on all aliens from certain countries, the
Proclamation effectively eliminates the right to petition for asylum provided by
Congress in the Refugee Act. Thus, the Proclamation violates the due process
rights bestowed upon all aliens present in the United States.
IV.

CONCLUSION

For the foregoing reasons, amicus urges this Court to consider U.S.
obligations under international law, which form part of U.S. law, in evaluating the
legality of the Proclamation.

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RESPECTFULLY SUBMITTED this 17th day of November, 2017.
Ilana H. Eisenstein*
John M. Leitner*
Ryan S. Macpherson*
DLA PIPER LLP (US)
One Liberty Place
1650 Market Street, Suite 4900
Philadelphia, PA 19103-7300
[phone]
[e-mail]
[e-mail]
[e-mail]

/s/ Donald Francis Donovan
Donald Francis Donovan
David W. Rivkin*
Jennifer R. Cowan*
Elizabeth Nielsen*
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Amicus Curiae

* Not admitted to Fourth Circuit Bar

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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Federal Rules of Appellate Procedure 29, 32(a)(5),
and 32(a)(7), the foregoing amicus curiae brief is proportionally spaced, has a
typeface of 14 point Times New Roman, and contains 3,490 words, excluding
those sections identified in Fed. R. App. P. 32(f).
/s/ Donald Francis Donovan
Donald Francis Donovan
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
[phone]
[e-mail]
Counsel for Amicus Curiae
Dated: November 17, 2017

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CERTIFICATE OF SERVICE
I certify that on November 17, 2017, the foregoing amicus curiae brief was
served on all parties or their counsel of record through the CM/ECF system. On the
same date, I caused sixteen true and correct paper copies of the foregoing to be
sent to the Clerk of Court, United States Court of Appeals for the Fourth Circuit,
1100 East Main Street, Suite 501, Richmond, Virginia 23219-3517.

/s/ Donald Francis Donovan
Donald Francis Donovan
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
[phone]
[e-mail]
Counsel for Amicus Curiae

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