Intl. Refugee Assistance v. Donald J. Trump

Filing 106

MOTION by American-Arab Anti-Discrimination Committee, Amicus Curiae leave to file Brief Amicus Curiae. Date and method of service: 11/17/2017 ecf. [1000194759] [17-2231, 17-2232, 17-2233, 17-2240] Christopher Wright [Entered: 11/17/2017 05:36 PM]

Nos. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 17-2331 (L)
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.
Defendants-Appellants
On Appeal from the United States District Court
For the District of Maryland
(Hon. Theodore D. Chuang, United States District Judge)
[Caption Continues on Inside Cover]
BRIEF OF AMICUS CURIAE, THE AMERICAN-ARAB ANTIDISCRIMINATION COMMITTEE IN SUPPORT OF
PLAINTIFFS-APPELLEES
Abed A. Ayoub
Samer E. Khalaf
Yolanda C. Rondon
Anton G. Hajjar
AMERICAN-ARAB ANTIDISCRIMINATION COMMITTEE
1705 DeSales St. NW, Suite 500
Washington, DC 20036
[phone]
[e-mail]

Christopher J. Wright
Counsel of Record
Adrienne E. Fowler
E. Austin Bonner
HARRIS, WILTSHIRE & GRANNIS
LLP
1919 M Street NW, Eighth Floor
Washington, DC 20036
[phone]
[e-mail]
Counsel for Amicus Curiae

NO. 17-2232

IRANIAN ALLIANCES ACROSS BORDERS, et al.
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.
Defendants-Appellants
On Appeal from the United States District Court
For the District of Maryland
(Hon. Theodore D. Chuang, United States District Judge)
(8:17-cv-020921-TDC)
NO. 17-2233
EBLAL ZAKZOK, et al.
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.
Defendants-Appellants
On Appeal from the United States District Court
For the District of Maryland
(Hon. Theodore D. Chuang, United States District Judge)
(1:17-cv-2969-TDC)

NO. 17-2240
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.
Defendants-Appellants
On Appeal from the United States District Court
For the District of Maryland
(Hon. Theodore D. Chuang, United States District Judge)
(8:17-cv-361-TDC)

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................ii
INTEREST OF AMICUS CURIAE ........................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................... 5
ARGUMENT ........................................................................................... 11
I.

SECTION 1182(f) DOES NOT PERMIT THE PRESIDENT TO
INTENTIONALLY DISCRIMINATE AGAINST MUSLIMS..... 11
RFRA limits the scope of the President’s § 1182(f) power. ......... 13
The Court must examine presidential motive to determine
whether Proclamation 9645 substantially burdens appellees’
belief in Islam............................................................................... 15

II.

RELIGIOUS ANIMUS SUBSTANTIALLY MOTIVATED
PROCLAMATION 9645. ............................................................. 20
Well-developed tools can guide the Court in this case. ............... 20
1. Jury Selection. ........................................................................... 20
2. Employment Discrimination. .................................................... 21
3. Free Exercise Clause. ................................................................ 22
Religious animus impermissibly motivated Proclamation
9645. ............................................................................................. 23
1. Comparisons. ............................................................................. 23
2. Lack of Fit. ................................................................................. 28
3. Atmosphere of Discrimination. ................................................. 30

III.

THE PROCLAMATION CANNOT SURVIVE STRICT
SCRUTINY. ................................................................................. 33

CONCLUSION ........................................................................................ 35
CERTIFICATE OF COMPLIANCE

ii

TABLE OF AUTHORITIES
Cases
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) .............................................................................. 28
Batson v. Kentucky,
476 U.S. 79 (1986)..................................................................... 20, 21, 24
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014)..................................................................... 16, 18
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993)....................................................................... passim
Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003)................................................................................. 22
Employment Division v. Smith,
494 U.S. 872 (1990) ............................................................................... 17
Foster v. Chatman,
136 S. Ct. 1737 (2016)........................................................................... 24
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir.), vacated and remanded, No. 16-1436,
2017 WL 4518553 (U.S. 2017) .......................................................... 5, 19
Jones v. Plaster,
57 F.3d 417 (4th Cir. 1995)................................................................... 21
Kesser v. Cambra,
465 F.3d 351 (9th Cir. 2006)................................................................. 21
Kleindienst v. Mandel,
408 U.S. 753 (1972)............................................................................... 19

iii
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)............................................................................... 24
Mereish v. Walker,
359 F.3d 330 (4th Cir. 2004)................................................................. 22
Miller-El v. Cockrell,
537 U.S. 322 (2003)............................................................. 21, 24, 30, 33
Miller-El v. Dretke,
545 U.S. 231 (2005)............................................................. 24, 28, 29, 33
Patterson v. McLean Credit Union,
491 U.S. 164 (1989)............................................................................... 30
Purkett v. Elem,
514 U.S. 765 (1995)............................................................................... 24
Sherbert v. Verner,
374 U.S. 398 (1963)................................................................... 16, 17, 18
Statutes
Immigration and Nationality Act,
8 U.S.C. § 1182(f) .................................................................. 9, 11, 12, 16
Religious Freedom Restoration Act,
42 U.S.C. § 2000bb, et seq ............................................................. passim
Other Authorities
Brief of Scholars of Mormon History & Law as Amici Curiae,
Trump v. Int’l Refugee Assistance Project, Nos. 16-1436, 16-1540
(U.S. Aug. 17, 2017) .............................................................................. 17
Christopher Woody, The Tipping Point: More And More
Venezuelans Are Uprooting Their Lives To Escape Their Country’s
Crises, Business Insider (Dec. 2, 2016) ................................................ 26
Executive Order 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)................ 2, 7

iv
Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ............... 2, 7
H.R. Rep. No. 103-88 (1993) .................................................................... 14
Leti Volpp, The Citizen and the Terrorist,
49 UCLA L. Rev. 1575 (2002) ................................................................. 4
Pew Research Center, The Global Religious Landscape: A Report on
the Size and Distribution of the World’s Major Religious Groups
as of 2010 (2012) ..................................................................................... 2
President Trump’s Speech to the Arab Islamic American Summit
(May 21, 2017) ........................................................................................ 4
Ronald D. Rotunda & John E. Nowak,
6 Treatise on Constitutional Law-Substance & Procedure
(5th ed. 2017) ........................................................................................ 17
S. Rep. No. 103-111 (1993) ...................................................................... 14

INTEREST OF AMICUS CURIAE
The American-Arab Anti-Discrimination Committee (ADC) is a
nonprofit, grassroots civil rights organization committed to defending
the rights of people of Arab descent and promoting their rich cultural
heritage. Founded in 1980 by U.S. Senator James Abourezk, ADC is
non-sectarian and non-partisan. With members from all fifty states and
chapters nationwide, it is the largest Arab-American grassroots
organization in the United States. ADC protects the Arab-American and
immigrant communities against discrimination, racism, and
stereotyping, and it vigorously advocates for immigrant and civil
rights. 1
Presidential Proclamation 9645 places a significant and
undeserved burden on ADC and its members. It indefinitely bans from
entry into the United States immigrants who are nationals of six
Muslim-majority nations: Iran, Libya, Somalia, Syria, Yemen, and
Chad. Proclamation 9645 also significantly limits or bans the entry of

ADC certifies that all parties have consented to the filing of this brief.
No counsel for any party authored this brief in whole or in part, no
party or party’s counsel made a monetary contribution to fund its
preparation or submission, and no person other than amicus or its
counsel made such a monetary contribution.
1

1

non-immigrants who are nationals of these six nations. JA 624; see also
Pew Research Center, The Global Religious Landscape: A Report on the
Size and Distribution of the World’s Major Religious Groups as of 2010,
46 (2012). Four of these nations are majority-Arab,2 and the other two
have significant Arab minority populations. 3 Proclamation 9645 also
affects nationals of two non-Muslim-majority nations: all nationals of
North Korea and certain specific individuals who are Venezuelan
nationals. JA 624. However, the overwhelming majority of individuals
harmed by Proclamation 9645 are nationals of Muslim-majority
nations, as was the case with the Presidents’ earlier efforts to prevent
Muslims and Arabs from entering into the United States. 4
ADC has worked with thousands of close friends and family of
ADC members located in the United States affected by the ban. By way
of example, A.A. is a Yemeni citizen who trained as an engineer; his
sister and brother-in-law are lawful permanent residents of the U.S.

Libya, Somalia, Syria, and Yemen.
3 Iran and Chad.
4 Proclamation 9645 follows two executive orders that exclusively
banned entry by nationals of certain majority-Muslim nations.
Executive Order 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017) (“January
Order”); Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017)
(“March Order”).
2

2

Unable to secure work due to ongoing armed conflict in Yemen, A.A.
studied English. He applied and was selected for a diversity visa
interview. After his interview, a consular official informed A.A. that,
due to a predecessor travel ban that, see infra 6-8, A.A. must prove a
bona fide, close familial relationship with a U.S. citizen or green card
holder before receiving his visa. A.A. quickly provided this information,
but the delay meant that all 50,000 diversity visas that could be issued
in 2017 had already been allotted before his application was processed.
A.A. is currently in limbo; his family in the United States lives in fear
for his safety and feel that they, too, are unwelcome in the U.S. because,
like A.A., they are Muslim Yemeni nationals. If Proclamation 9645 is
implemented, A.A. may remain perpetually in limbo.
Similarly, Q.A. is a Muslim Yemeni national whose daughter is a
lawful permanent resident of the United States. He also “won”
eligibility for a diversity visa in the lottery. The visa would have
enabled him, his wife, and his four other children to enter the United
States. Q.A. faced similar administrative delays associated with having
to prove his bona fide connection to the United States; as a result, he
could not get his visa processed before all of the 2017 diversity visas

3

had already been issued, despite quickly providing information
regarding his bona fide ties. Q.A.’s daughter remains in the United
States without the familial, religious, and economic support of her
parents and siblings.
Moreover, Proclamation 9645 was intended to have and has had
the effect of branding Islam as a dangerous religion and making clear
that Muslims are not fully welcome in the United States. Plainly, this
harms Muslim American Arabs. But it also harms American Arabs who
are not Muslim. Americans frequently conflate Arabic ethnicity with
belief in Islam, despite the fact that most Muslims are not Arab.5
Accordingly, Arab-Americans, regardless of faith, suffer from the effects
of a government-sanctioned message that Muslims are threatening and
un-American. ADC therefore urges the Court to uphold the portions of
the district court’s decision that granted relief to appellees, and to
overturn the district court’s conclusion that plaintiffs are not

See generally Leti Volpp, The Citizen and the Terrorist, 49 UCLA L.
Rev. 1575, 1584 (2002); see also President Trump’s Speech to the Arab
Islamic American Summit (May 21, 2017),
https://www.whitehouse.gov/the-press-office/2017/05/21/presidenttrumps-speech-arab-islamic-american-summit (describing as a single
category “Arab, Muslim and Middle Eastern nations”).
5

4

substantially likely to succeed in their claim that Proclamation 9645
exceeds the President’s statutory authority under 8 U.S.C. § 1182(f).
INTRODUCTION AND SUMMARY OF ARGUMENT
Presidential motive matters here. It may not always (or even
often) matter when the President bars a given category of individuals
from entering the United States. But the specific history behind
Proclamation 9645 and the discriminatory manner in which it operates
require the Court to examine whether the President is telling the truth
about why he adopted the Proclamation, or if his purported national
security rationale shelters the primary motive: disadvantaging belief in
Islam.
Various courts, including this one, have already concluded that
the two Executive Orders, on which the President based Proclamation
9645, were specifically designed to keep Muslims out of America based
largely on extraordinary statements where President Trump declared
his intent to discriminate against Muslims in the immigration context.
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.),
vacated and remanded, No. 16-1436, 2017 WL 4518553 (U.S. 2017). In
describing his plans for future immigration policy, Candidate Trump

5

promised “a total and complete shutdown of Muslims entering the
United States until our country’s representatives can figure out what is
going on.” JA 135. He made his animus for Muslims inside and outside
of the U.S. clear, stating in public interviews that “Islam hates us [and]
. . . we can’t allow people coming into the country who have this hatred,”
and, “[W]e’re having problems with the Muslims, and we’re having
problems with Muslims coming into the country.” JA 305-306, 311.
Almost immediately after taking office, President Trump signed a
first Executive Order, which both imposed a temporary travel ban and
set the criteria officials should examine when designing a permanent
travel ban, without consulting any government national security
experts. See JA 173. With a wink and a nod, he made clear that the first
Executive Order made good on his promise of a Muslim ban even
though the ban applied to immigration from majority-Muslim countries.
JA 192 (“This is the ‘Protection of the Nation from Foreign Terrorist
Entry into the United States.’ We all know what that means.”). Any
ambiguity on that score was clarified by the Executive Order’s
provisions ensuring that non-Muslims from the affected countries would
be given preferential treatment. See January Order § 5. The Executive

6

Order directed the Secretary of Homeland Security, in consultation with
additional government officials, to conduct a worldwide review of
whether foreign governments could provide additional information that
would suffice for the U.S. to determine an applicant is not a security
threat and (if so) what additional information was needed for each
country. January Order § 2(a). After giving each country the
opportunity to provide any necessary and sufficient additional
information, the Secretary was to recommend a list of countries whose
nationals should be included in a permanent travel ban. Id. § 2(e).
After the first Executive Order was invalidated, President Trump
enacted a revised Muslim ban designed to evade judicial scrutiny. See
JA 778-779. Like the January Executive Order, the March Executive
Order required the Secretary of Homeland Security to engage in an
analysis that would evaluate countries’ citizens for inclusion in a future,
permanent travel ban. March Order § 2.
After this Court (and others) found the second Executive Order to
likely be unlawful, the President enacted the Proclamation now under
review. The face of the Proclamation claims that it is designed to
“protect the security and interests of the United States and its people”

7

and that it neutrally affects nationals of countries that “remain
deficient . . . with respect to their identity-management and
information-sharing capabilities, protocols, and practices.” JA 620. But
Proclamation 9645 is more of the same: Presidential action that is
designed to keep Muslims out of the United States because of their
faith, despite being facially neutral toward religion. It indefinitely bans
from entry into the United States immigrants who are nationals of six
Muslim-majority nations (all but one of which had been covered by the
earlier Executive Orders) and indefinitely limits non-immigrant entry
by nationals of these countries—impacting tens of thousands of
individuals from these nations on the theory that Muslims are
dangerous. JA 624-626. While on its face the Proclamation also affects
nationals of two non-Muslim-majority nations, Venezuela and North
Korea, id., in practice, it excludes only a handful of individuals from
those nations. See JA 1066. All the while, the President has continued
to demonstrate that he personally has animus against Muslims, see JA
644, 1073-1074. The government has refused to disclose whether
Proclamation 9645 is materially inconsistent with the advice he
received from his advisors. JA 952-953.

8

The government urges the Court to look away, contending that,
under the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(f),
the Court must take the President at his word that his primary
motivation in enacting Proclamation 9645 was national security—and
that the Court must decline to take the President at his earlier word
that he intended to impose a travel ban on Muslims. See Appellants’ Br.
at 29-32, 40-43. Not so.
As the district court properly held, the Establishment Clause
enables courts to examine the President’s motives because appellees
had “plausibly alleged” that the President’s national security rationale
was “not bona fide.” JA 1056. It applied an analysis of the President’s
motive grounded in Establishment Clause jurisprudence, and it
concluded appellees were likely to show that Proclamation 9645 was
unconstitutional because it was primarily motivated by religious
animus.
However, the district court did not fully analyze the interplay
between primary presidential motive and the extent of the President’s
power in the statutory context. The district court held that § 1182(f)
authorized the President to adopt Proclamation 9645, and that

9

Congress had not provided “any clear limit on the President’s authority
under § 1182(f) that this proclamation has crossed.” JA 1051. But
promulgating a proclamation based on religious animus would exceed
the limit Congress placed on the President’s § 1182(f) authority in
adopting the Religious Freedom Restoration Act (RFRA).
When adopting RFRA, Congress revoked any prior authority the
President may have had under § 1182(f) to take any action that
“substantially burden[s] a person’s exercise of religion even if the
burden results from a rule of general applicability,” unless he can show
that the burden “(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1. A showing of
animus provides clear-cut evidence that the Proclamation, in fact,
disfavors belief in Islam. History shows that laws designed to single out
and discriminate against members of a minority religion almost always
serve their intended purpose, and then some. Thus, RFRA requires the
Court to examine whether the Presidents’ purported justification for
Proclamation 9645 conceals unlawful animus against Muslims.
In engaging in this statutory pretext analysis—or, for that matter,

10

a pretext analysis under the Establishment Clause—the Court can
reply on well-developed frameworks for unmasking unlawful
discrimination underlying facially reasonable justifications. These
frameworks, developed in cases involving jury selection, employment
discrimination, and the free exercise of religion, confirm the district
court’s conclusion that the President’s primary motivation in
promulgating Proclamation 9645 was animus toward Muslims—making
the Proclamation subject to strict scrutiny under both RFRA and the
Establishment Clause.
Looking at motive here does not prevent executive action under
§ 1182(f) that is primarily aimed at advancing national security
interests, because such interests are indeed compelling. It surely must
be the unusual case where executive action addressing national security
interests is the product of religious animus and is not narrowly tailored
to advance a compelling government interest. But the Court is
presented with such an unusual case here.
ARGUMENT
I.

SECTION 1182(f) DOES NOT PERMIT THE PRESIDENT
TO INTENTIONALLY DISCRIMINATE AGAINST
MUSLIMS.
The district court properly concluded that (1) the President may
11

not use § 1182(f) in a manner that violates the Establishment Clause
and (2) courts, in Establishment Clause cases, have the power to find
the President acted with a primary purpose of religious animus upon an
affirmative showing of bad faith. However, the district court did not
consider that the same holds true as a matter of statutory analysis.
Section 1182(f) provides an alternative reason for affirming the district
court’s ruling that is supported by the record.
The government contends that § 1182(f) authorized the President
to promulgate Proclamation 9645. That section provides:
Whenever the President finds that the entry of any aliens or of
any class of aliens into the United States would be
detrimental to the interests of the United States, he may by
proclamation, and for such period as he shall deem necessary,
suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of
aliens any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f). While this provision is facially quite broad, Congress
mandated that it be read in harmony with RFRA. RFRA makes clear
that the President has no power to use § 1182(f) in a way that
substantially burdens belief in Islam, unless his action represents the
least restrictive means of furthering some compelling governmental

12

interest. 6 Substantial burden can be presumed if the President was
substantially motivated by religious animus when invoking § 1182(f).
Congress intended RFRA to apply with equal force to the President’s
power in the immigration arena. As such, this Court must examine
whether the President was substantially motivated by religious animus
when he adopted the Proclamation pursuant to 1182(f).
RFRA limits the scope of the President’s § 1182(f)
power.
RFRA limits the federal government’s ability to “substantially
burden a person’s exercise of religion even if the burden results from a
rule of general applicability.” 42 U.S.C. § 2000bb-1. Such action, even if
supported by statute and facially religion-neutral, is valid only if it “(1)
is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental
interest.”

The IRAP appellees’ complaint includes a claim based on RFRA’s
independent cause of action. JA 539. The district court did not evaluate
whether the IRAP appellees were likely to succeed on the merits of their
RFRA claim. If the Court determines that appellees are not entitled to
preliminary relief for their Establishment Clause or INA causes of
action, the Court should evaluate whether RFRA provides an
alternative basis for affirming the decision below, or remand with
instructions to consider the issue.
6

13

RFRA limits all federal statutes that were passed before its
effective date; it prevents any government official from interpreting a
statute or engaging in statutorily authorized action that could
substantially burden religion, unless the action or interpretation can
survives strict scrutiny. 42 U.S.C. § 2000bb-3. In other words, to the
extent that § 1182(f) could be construed to impose a substantial burden
on the exercise of religion in a manner that did not pass strict scrutiny,
that construction is invalid.
Importantly, RFRA does not contain an exception for the
immigration or national security arenas, or for the President; it “applies
to all Federal law, and the implementation of that law, whether
statutory or otherwise, and whether adopted before or after November
16, 1993.” Id. Consequently, “[s]eemingly reasonable regulations based
upon speculation [and] exaggerated fears of thoughtless policies cannot
stand,” even in contexts where the political branches are due
considerable deference. H.R. Rep. No. 103-88, at 8 (1993) (explaining
that RFRA applies even to the military context, where executive
authority is at its height); accord S. Rep. No. 103-111, at 8, 12 (1993).
Thus, Proclamation 9645 exceeds the President’s § 1182(f) authority if it

14

imposes a substantial burden on the exercise of religion in a manner that
fails strict scrutiny.
The Court must examine presidential motive to
determine whether Proclamation 9645 substantially
burdens appellees’ belief in Islam.
The district court examined the religious liberty implications of
Proclamation 9645 only under the Establishment Clause. But if
appellees successfully show that the Proclamation was motivated by
animus against Muslims, the Proclamation would be subject to strict
scrutiny under both the Establishment Clause and the statutory and
constitutional protections for free exercise, including RFRA. Because
both the Establishment Clause and RFRA limit the President’s
authority under the INA, whether the President adopted the
Proclamation due to religious animus is highly relevant to whether the
Proclamation exceeds the President’s authority under the INA.
Government action that privileges belief in one religion over
another undoubtedly implicates the Establishment Clause. Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993)
(courts have repeatedly held that government activity designed to
“discriminate[] against some or all religious beliefs” violates the

15

Establishment Clause). Accordingly, ADC echoes the district court’s
conclusion that the Establishment Clause prevents the President from
exercising § 1182(f) with the aim of disfavoring Islam.
But favoring belief in one religion over another also implicates
protections for the free exercise of religion. Holding a religious belief is
a form of religious exercise and an extraordinarily protected form at
that. Sherbert v. Verner, 374 U.S. 398, 402 (1963) (“The door of the Free
Exercise Clause stands tightly closed against any governmental
regulation of religious beliefs as such.”); Burwell v. Hobby Lobby Stores,
Inc., 134 S. Ct. 2751, 2770 (2014) (explaining that the term “exercise of
religion” within the meaning of RFRA involves religious belief that does
not result in any additional action). Government may not “penalize or
discriminate against individuals or groups because they hold religious
views abhorrent to the authorities.” Sherbert, 374 U.S. at 402; see also
42 U.S.C. § 2000bb (incorporating the Sherbert standard into RFRA).
This is because government action adopted to discriminate against
religious beliefs, almost without fail, will penalize belief in that religion.
See Lukumi, 508 U.S. at 564 (striking down a “rare example of a law
actually aimed at suppressing religious exercise” on Free Exercise

16

Clause grounds); Brief of Scholars of Mormon History & Law as Amici
Curiae, Trump v. Int’l Refugee Assistance Project, Nos. 16-1436, 16-1540
(U.S. Aug. 17, 2017). Accordingly, both free exercise and antiestablishment jurisprudence “prevent the government from singling out
specific religious sects for special benefits or burdens.” Ronald Rotunda
& John E. Nowak, 6 Treatise on Constitutional Law-Substance &
Procedure § 21.1(a) (5th ed. 2017).
Because Sherbert and its progeny require courts to apply strict
scrutiny to government action animated by animus a particular religious
belief, 374 U.S. at 402, so too does RFRA. This approach is a product of
history and of statute: In Employment Division v. Smith, 494 U.S. 872,
883-90 (1990), the Supreme Court substantially limited the application
of Sherbert, holding that the Free Exercise Clause did not subject most
facially neutral laws of general applicability to strict scrutiny. Congress
enacted RFRA in direct response to Smith and applied statutory
protections that mirrored the protections for free exercise set out in
Sherbert and its progeny by specific reference. 42 U.S.C. § 2000bb. Thus,
the Supreme Court has used the Sherbert line of Free Exercise Clause
jurisprudence to determine whether government action substantially

17

burdens the exercise of religion within the meaning of RFRA. Hobby
Lobby, 134 S. Ct. at 2770.
Lukumi and Sherbert show that government action based on
animus toward believers in any particular faith so strongly suggests the
imposition of a substantial burden that, if Proclamation 9645 was
adopted to discriminate against Muslims, appellees need to show little
more (if anything) to demonstrate Proclamation 9645 imposes a
substantial burden on them. Appellees are likely to make such a
showing. Multiple organizational appellees allege that their members
“will remain in limbo as to whether they will ever be reunited” with
family members who could not enter the U.S. due to the Proclamation.
JA 521; accord JA 517. Another organizational appellee represents
students who, under the Proclamation, “lose their ability to visit family
and friends abroad with an assurance they will be permitted to
reenter,” including for religious and secular holidays. JA 524. Yet
another has members who, since the issuance of the President’s first
travel ban, “have been subjected to harassment by law enforcement
agencies conducting new security checks” and “been detained at
airports, or rejected from flights multiple times even though they are

18

presenting valid visas.” JA 517. Individual appellees also allege
significant burdens, including being accosted by a customer or
experiencing differential treatment when wearing a headscarf due to
the travel ban. JA 537-538. If proven, these allegations would surely
suffice to demonstrate that appellees are substantially burdened
because they believe in (or are an organization serving individuals that
believe in) Islam.
Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972), does not alter
this conclusion. The government contends that Mandel precludes the
Court from “looking behind” the rationale put forth in the text of
Proclamation 9645. Appellants’ Br. 40. Even assuming arguendo that
Mandel precludes the Court from examining the President’s motives as
part of its constitutional analysis, 7 Mandel plainly does not apply to the
Court’s statutory analysis. Mandel did not involve an application of
§ 1182(f) and was decided before RFRA was enacted.

It does not. As this Court previously held, Mandel and other
precedents requiring deference to the President’s national security
judgment do not bar an inquiry beyond the face of his justifications
where, as in this case, there has been “an affirmative showing of bad
faith.” IRAP, 857 F.3d at 590-91.
7

19

II.

RELIGIOUS ANIMUS SUBSTANTIALLY MOTIVATED
PROCLAMATION 9645.
As courts have long recognized, discriminatory actions are often

sheltered behind or intertwined with facially legal reasoning.
Accordingly, courts have developed robust tools for determining
whether a party’s stated reason for acting masks an impermissible
discriminatory motive, including in cases involving the free exercise of
religion, jury selection, and employment. Here, where the President’s
extraordinary public statements cannot help but raise the specter of
religious animus (and where RFRA narrows the deference ordinarily
owed to the President in the immigration and national security arenas),
those tools can aid the Court in evaluating whether the Proclamation is
unlawful, despite the government’s assertions that it was adopted solely
to promote national security.
Well-developed tools can guide the Court in this case.
1.

Jury Selection.

When criminal defendants allege racial discrimination in
prosecutors’ use of peremptory strikes, courts evaluate prosecutors’
proffered reasons for pretext as part of the Batson v. Kentucky
framework. 476 U.S. 79, 96 (1986). In a Batson challenge, the defendant

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must first produce evidence that gives rise to an inference of
discrimination. Id. at 97. Once the prima facie case is established, the
government must come forward with a neutral non-discriminatory
explanation for the strike. Id. at 97-98. The court then determines
whether, in light of the prosecution’s proffered reason, the defendant has
nevertheless established purposeful discrimination. Id. at 98. Batson’s
third step often turns on a pretext analysis. See, e.g., Miller-El v.
Cockrell, 537 U.S. 322, 339 (2003). In mixed motive cases—cases where
a strike “has been exercised in part for a discriminatory purpose” and in
part for a non-discriminatory purpose—a strike survives Batson step
three only if the prosecutor persuasively demonstrates that “the strike
would have nevertheless been exercised even if an improper factor had
not motivated in part the decision to strike.” Jones v. Plaster, 57 F.3d
417, 420-21 (4th Cir. 1995). While a Batson analysis is deferential to the
government, it “is not toothless in the face of . . . blatant”
discrimination. Kesser v. Cambra, 465 F.3d 351, 358 (9th Cir. 2006).
2.

Employment Discrimination.

Allegations brought under employment discrimination statutes
often include a pretext inquiry even in mixed-motive cases, where an

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employer allegedly engaged in adverse employment action “where both
legitimate and illegitimate reasons motivated the decision.” Desert
Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003). To succeed in such mixedmotive cases where pretext is alleged, the plaintiff must show that
discrimination “was a substantial motivating factor” in the employer’s
decision to engage in adverse action. Mereish v. Walker, 359 F.3d 330,
339 (4th Cir. 2004). Proof that “would have taken the same action even
absent” discriminatory intent serves as an affirmative defense. Id.
3.

Free Exercise Clause.

The Supreme Court has also evaluated pretext in the context of a
Free Exercise Clause challenge to government action allegedly
motivated by religious animus. In Lukumi, the Supreme Court held
that “[f]acial neutrality” of government action “is not determinative” of
whether it is designed to limit the free exercise of religion. 508 U.S. at
534. After noting that the text, history, and application of the
challenged ordinance suggested discrimination on the basis of religious
belief, the Supreme Court engaged in an independent analysis of
whether the ordinance was adopted for a religiously neutral purpose.
Id.

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Religious animus impermissibly motivated
Proclamation 9645.
In ferreting out discrimination in these areas, a few categories of
evidence are especially probative of pretext. Courts have been
particularly alert to:
(1) unexplained differences between the treatment of members of
different groups;
(2) a lack of fit between the stated reasons for an action and that
action’s results; and
(3) an atmosphere of discrimination, based on past statements or
actions.
Looking to those forms of evidence here, the inevitable conclusion is
that animus towards Muslims substantially motivated Proclamation
9645.
1.

Comparisons.

Courts compare individuals or groups subject to a challenged
action to those not affected in order to assess whether an unlawful
motive hides behind a facially valid one. In the Free Exercise context, a
strong inference of discriminatory motive arises when the burden of
governmental action “in practical terms, falls on adherents [of a
particular religion] but almost no others” or the challenged government
action exempts non-religiously motivated conduct. Lukumi, 508 U.S. at
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536-37. In employment discrimination cases, such comparisons are
“especially relevant” to a finding of pretext. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973). In the Batson context, “[i]f a
prosecutor’s proffered reason for striking a black panelist applies just as
well to an otherwise-similar nonblack who is permitted to serve, that is
evidence tending to prove purposeful discrimination.” Miller-El v.
Dretke, 545 U.S. 231, 241 (2005); see also Foster v. Chatman, 136 S. Ct.
1737, 1750 (2016) (finding certain explanations “difficult to credit
because the State willingly accepted white jurors with the same traits
that supposedly rendered Garrett an unattractive juror”).
Put simply, if a party claims to have a particular rationale for its
actions, but then applies that rationale in a disparate manner based on
race, gender, or religion, that strongly suggests that race, gender, or
religion is the true basis for the party’s actions. When no plausible
explanation is offered for that disparate application, the inference of
discrimination becomes stronger still. Cockrell, 537 U.S. at 345; see also
Purkett v. Elem, 514 U.S. 765, 768 (1995) (characterizing “implausible
or fantastic justifications” as “pretexts for purposeful discrimination”).
The stated rationale for Proclamation 9645—alleviating the risk

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that a foreign government’s vetting procedures will fail to identify a
dangerous individual, JA 624—has quite clearly been applied
disparately, in a way that is nearly impossible to explain without
reference to religion. Most of the nations covered by Proclamation 9645
are majority-Muslim. But more importantly for a religious
discrimination analysis, Lukumi, 508 U.S. at 536-37, almost all of the
individuals whose entry into the United States is affected are nationals
of majority-Muslim nations.8 The Proclamation affects roughly 65,000
nationals of majority-Muslim nations—every single national of six
nations who seeks entry to the United States. See JA 866 (estimating
number of affected individuals). Less than a hundred nationals of nonmajority-Muslim nations are likely effected. See id. (estimating 61
affected individuals for North Korea and a small handful of specific
individuals from Venezuela). In other words, an estimated 99.9% of
individuals affected by the ban will be nationals of Muslim-majority
nations.
This gross disparity might conceivably be justified if only

There are various ways to estimate the number of affected individuals,
but all show that almost everyone affected is the national of a Muslimmajority nation. See First Cross-Appeal Br. for Appellees at 7.
8

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governments of Muslim-majority countries had security and
information-sharing problems. Or if entry from all non-Muslim-majority
countries with security and information-sharing problems were rare.
The Proclamation’s treatment of Venezuelan nationals, however, shows
that neither of these scenarios exists.
A large and growing number of Venezuelan nationals seek to
enter the United States. See Christopher Woody, The Tipping Point:
More And More Venezuelans Are Uprooting Their Lives To Escape Their
Country’s Crises, Business Insider (Dec. 2, 2016). The President
concluded that “Venezuela’s government fails to share public-safety and
terrorism-related information adequately, fails to satisfy at least one
key risk criterion, and has been assessed to be not fully cooperative
with respect to receiving its nationals subject to final orders of removal
from the United States.” JA 625. Nonetheless, unlike similarly situated
majority-Muslim nations, the Proclamation restricts entry only by
“officials of government agencies of Venezuela involved in screening and
vetting procedures” rather than all Venezuelan nationals. Id.
The Proclamation attempts to dismiss this disparity, stating
“[t]here are . . . alternative sources for obtaining information to verify

26

the citizenship and identity of nationals from Venezuela.” Id. This
leaves entirely unaddressed the Proclamation’s own conclusions that
Venezuela fails to satisfy at least one key risk criterion (i.e., that
terrorist groups are active within Venezuela, see JA 1296) and does not
cooperate with taking back Venezuelans who have been deported from
the U.S. The President used these same factors to justify restricting
entry by any citizen from Chad and Somalia. See JA 624, 626.
Comparing the Proclamation’s treatment of Somalia to nonmajority-Muslim nations is also telling. Somalia met the informationsharing requirements that the government applied to every other
nation. JA 626. Nonetheless, the President deemed Somalia—and no
other country—to present such a risk to national security that all
Somalian nationals should face severe restrictions on entry into the
U.S. Id. The government provides no evidence that it engaged in the
same type of analysis with respect to non-majority-Muslim nations that
met the government’s information-sharing requirements. The
government’s religion-neutral explanation for imposing a burden on a
large group of individuals, 99.9% of whom come from Muslim-majority
nations, simply does not add up.

27

2.

Lack of Fit.

The inference of discriminatory pretext becomes stronger still
when a party’s stated goal could be accomplished just as effectively
without a disparate impact. See Albemarle Paper Co. v. Moody, 422
U.S. 405, 425 (1975) (explaining that evidence that an employment
policy’s goal could be accomplished without an “undesirable racial
effect” demonstrates pretext); Dretke, 545 U.S. at 260 (examining the
“fit” between prosecutors’ stated reason for striking jurors and the
actual impact on the jury pool). If a more efficient method exists to
accomplish a stated goal, the natural question to ask is why someone
chose the less efficient method. When ignoring efficiency creates clear
disparate impact on members of a particular class, that question
answers itself: the stated goal is a pretext for discrimination.
Restricting all nationals of six majority-Muslim nations and North
Korea is not an effective way to combat terrorism. A Department of
Homeland Security draft report, prepared about two weeks before the
President’s second Executive Order took effect, concluded that
citizenship “is unlikely to be a reliable indicator of potential terrorist
activity.” JA 898. Indeed, the biggest nationality-based predictor of

28

someone committing a terrorist act on U.S. soil is American citizenship.
Id. Yet the President directed the Department of Homeland Security to
focus on citizenship when recommending which countries should be
included in a permanent travel ban—recommendations that laid the
basis for Proclamation 9645.
The point is not that the Proclamation constitutes bad policy or
relies on questionable national security judgments. Rather, this
evidence makes clear that the Proclamation’s means do not match its
stated ends. There is no “fit of fact and explanation.” Dretke, 545 U.S. at
260. And when a party’s stated explanation deviates so dramatically
from clear facts, this Court often draws the obvious inference that the
stated explanation is not really the main one.
That inference is even stronger when, as here, a different,
discriminatory explanation leads to a “much tighter fit of fact and
explanation.” Id. Although the Proclamation does a poor job of
preventing terrorist attacks on U.S. soil, it makes significant strides
toward fulfilling a campaign promise to curtail the entry of Muslims into
the United States.

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3.

Atmosphere of Discrimination.

An atmosphere of discrimination also provides evidence of pretext.
See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 188 (1989),
abrogated on other statutory grounds (“[P]etitioner could seek to
persuade the jury that respondent had not offered the true reason for its
promotion decision by presenting evidence of respondent’s past
treatment of petitioner, including the instances of the racial
harassment.”); Lukumi, 508 U.S. at 539 (looking to the timing and
circumstances surrounding an ordinance’s passage when evaluating its
constitutionality); Cockrell, 537 U.S. at 346-47 (explaining “historical
evidence of racial discrimination” and a “culture [that] in the past was
suffused with bias” tend “to erode the credibility of the prosecution’s
assertion that race was not a motivating factor,” especially when the
prosecution uses the same tactics that had previously been shown to be
racially motivated). Repeated invidious statements by the President
and his advisors evince just the sort of culture suffused with bias that
warrants skepticism toward alleged explanations. Most prominently, for
a long period of time during his presidential campaign, President Trump
explicitly called for “a total and complete shutdown of Muslims entering

30

the United States until our country’s representatives can figure out
what is going on.” JA 135. But President Trump did not back down from
these positions after Election Day. The text of the January Executive
Order echoed language about presumed hate and anti-American
attitudes among Muslims that he had used in his original calls for a
ban, alluding to stereotypes particularly commonly applied to Arab
Muslims:
In order to protect Americans, the United States must ensure
that those admitted to this country do not bear hostile
attitudes toward it and its founding principles. The United
States cannot, and should not, admit those who do not support
the Constitution, or those who would place violent ideologies
over American law. In addition, the United States should not
admit those who engage in acts of bigotry or hatred (including
“honor” killings, other forms of violence against women, or the
persecution of those who practice religions different from
their own) or those who would oppress Americans of any race,
gender, or sexual orientation.
January Order § 10. In signing that Executive Order, President Trump
said, “This is the ‘Protection of the Nation from Foreign Terrorist Entry
into the United States.’ We all know what that means.” JA 192. The
clear implication is that the Order furthered President Trump’s
longstanding promise to implement a “shutdown of Muslims entering
the United States.” JA 257.

31

President Trump has never disavowed his earlier anti- Muslim
sentiments. To the contrary, President Trump reiterated his intent to
“keep my campaign promises” despite negative judicial decisions
regarding the legality of his first Executive Order. JA 141. Senior Policy
Advisor to the President Stephen Miller, in discussing plans for a second
Executive Order, explained that it would produce the “same basic policy
outcome for the country,” with “mostly minor technical differences.” JA
756. Then-Press Secretary Sean Spicer concurred, saying, “The
principles of the Executive Order remain the same.” JA 168. And after
he had signed the March Executive Order, President Trump described it
in a major speech as “a watered down version of the first order.” JA 779.
The President’s discriminatory statements continued through
shortly before he signed Proclamation 9645. While awaiting
recommendations from his advisors, the President promised that his
final travel ban, now embodied in Proclamation 9645, would impose a
“much tougher version” of his earlier travel bans. JA 664. On August
17, 2017, President Trump tweeted, “Study what General Pershing of
the United States did to terrorists when caught. There was no more
Radical Islamic Terror for 35 years!” JA 509. As appellees explain:

32

This statement refers to the apocryphal story of General
Pershing executing 49 out of 50 terrorists with bullets dipped
in pigs’ blood, leaving the fiftieth person alive to tell the tale.
While this is not the first time President Trump has referred
to this story, it has been routinely debunked by historians and
the press.
Id.
These statements provide strong evidence that religion “was on
[President Trump’s] mind[] when [he] considered” the Proclamation.
Dretke, 545 U.S. at 266. This case presents the sort of atmosphere of
discrimination that “tends to erode the credibility of” assertions that
impermissible discrimination “was not a motivating factor.” Cockrell, 537
U.S. at 346. Given President Trump’s numerous, unequivocal
statements focused on the threat of “hatred and danger” from Muslims,
the reasons proffered for implementing Proclamation 9645 were, at the
very most, secondary to religious animus.
III. THE PROCLAMATION CANNOT SURVIVE STRICT
SCRUTINY.
Because Proclamation 9645 imposes a substantial burden on belief
in Islam, the President only has authority to promulgate it under
§ 1182(f) if the Proclamation sets forth the least restrictive means of
furthering the government’s indisputably compelling interest in
national security. Under this “more robust standard of review,”
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appellees’ § 1182(f) argument must “carry the day.” JA 1043. As the
district court concluded, the government has “not shown that national
security cannot be maintained without an unprecedented eight-country
travel ban.” JA 1078.
The government is also unlikely to show that the Proclamation is
narrowly tailored to further a compelling government interest. See 42
U.S.C. § 2000bb-1. The government has no compelling interest in
discriminating against belief in Islam. Although national security is a
compelling interest, the Proclamation is not narrowly tailored to meet
it; instead, focusing on entrants’ nationality is at best a crude and
ineffective proxy for the security risks they present. See supra Part
II(B)(2). Therefore, the Proclamation cannot survive the scrutiny
required by the Establishment Clause and § 1182(f) as limited by
RFRA.

34

CONCLUSION
We respectfully request that the Court grant appellees’ crossappeal and deny appellants’ cross-appeal.

Respectfully submitted,
Abed A. Ayoub
Samer E. Khalaf
Yolanda C. Rondon
Anton G. Hajjar
AMERICAN-ARAB ANTIDISCRIMINATION COMMITTEE
1705 DeSales St. NW, Suite 500
Washington, DC 20036
[phone]
[e-mail]

/s/ Christopher J. Wright
Christopher J. Wright
Counsel of Record
Adrienne E. Fowler
E. Austin Bonner
HARRIS, WILTSHIRE & GRANNIS
LLP
1919 M Street NW, Eighth Floor
Washington, DC 20036
[phone]
[e-mail]
Counsel for Amicus Curiae

35

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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