Intl. Refugee Assistance v. Donald J. Trump

Filing 111

AMICUS CURIAE BRIEF by National Asian Pacific American Bar Association (Amicus Supporting Appellees) in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/20/2017. [1000194776] [17-2231] Joshua Rogaczewski [Entered: 11/17/2017 09:03 PM]

Case 17-2231
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
International Refugee Assistance Project; HIAS, Inc.; John Does Nos. 1 & 3;
Jane Doe No. 2; Middle East Studies Association of North America, Inc.;
Muhammed Meteab; Paul Harrison; Ibrahim Ahmed Mohomed; and
Arab American Association of New York,
Plaintiffs/Appellees,
and Allan Hakky and Samaneh Takaloo
Plaintiffs,
v.
Donald J. Trump; Department of Homeland Security; Department of State;
Office of the Director of National Intelligence; Elaine C. Duke; Rex Tillerson;
and Daniel R. Coats,
Defendants/Appellants.
On Appeal from the United States District Court for the District of Maryland
AMICUS-CURIAE BRIEF OF THE NATIONAL ASIAN PACIFIC
AMERICAN BAR ASSOCIATION IN SUPPORT OF PLAINTIFFS
AND AFFIRMANCE
Tina R. Matsuoka
Navdeep Singh
Meredith S.H. Higashi
Rachana Pathak
Albert Giang
National Asian Pacific American Bar
Association
1612 K Street, Northwest, Suite 510
Washington, D.C. 20006
202.775.9555
202.775.9333 fax

Joshua David Rogaczewski*
([e-mail])
James W. Kim†
([e-mail])
Philip J. Levine† ([e-mail])
McDermott Will & Emery LLP
500 North Capitol Street, Northwest
Washington, D.C. 20001
202.756.8000
202.756.8087 fax
*

Of Counsel to NAPABA

Counsel to NAPABA
Of Counsel to NAPABA

†

DISCLOSURE OF CORPORATE
AFFILIATIONS AND OTHER INTERESTS
Pursuant to Federal Rule of Appellate Procedure 26.1, the National Asian
Pacific American Bar Association, who is an amicus curiae, makes the following
disclosure:
1.

NAPABA is not a publicly held corporation or other publicly held

2.

NAPABA does not have any parent corporations.

3.

Ten percent or more of NAPABA’s stock is not owned by a publicly

entity.

held corporation or other publicly held entity.
4.

There is not any other publicly held corporation or other publicly held

entity that has a direct financial interest in the outcome of the litigation.
5.

This case does not arise out of bankruptcy proceeding.

Dated: November 17, 2017
s/Joshua David Rogaczewski
Joshua David Rogaczewski
Counsel to NAPABA

TABLE OF CONTENTS
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER
INTERESTS ....................................................................................................i
TABLE OF AUTHORITIES .................................................................................. iii
INTEREST OF AMICUS CURIAE .........................................................................1
ARGUMENT ............................................................................................................2
I.

The Current Travel Ban Is the Latest in a Series of Executive Actions
Targeting Immigrants from Muslim-Majority Countries. ..............................2

II.

The Executive Orders Must Be Assessed Against the Historical
Backdrop of Nationality-Based Discrimination in U.S. Immigration,
Which Was Plagued by Abuse and Which Has Been Properly
Renounced. .....................................................................................................3
A.

EO-3 Echoes Historical Discrimination in the Application of
Immigration Laws Based upon National Origin. .................................4

B.

In 1965, Congress and President Johnson Dismantled Quotas
Based upon Nationality and Barred Distinctions Based upon
“Race, Sex, Nationality, Place of Birth, or Place of Residence.” ......10

C.

By Promoting Discrimination, EO-3 Is Contrary to Statutory
Language and Purpose. ......................................................................14

D.

The History of Discrimination Informs the Present Dispute. ............19

CONCLUSION .......................................................................................................23
CERTIFICATE OF COMPLIANCE WITH TYPE–VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE
REQUIREMENTS .......................................................................................25
PROOF OF SERVICE ............................................................................................26

ii

TABLE OF AUTHORITIES
Cases
Abdullah v. INS,
184 F.3d 158 (2d Cir. 1999) ...........................................................................16
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986), aff’d mem., 484 U.S. 1 (1987)...................18
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988).........................................................................18
Am. Acad. of Religion v. Napolitano,
573 F.3d 115 (2d Cir. 2009) ...........................................................................19
Bertrand v. Sava,
684 F.2d 204 (2d Cir. 1982) ...........................................................................16
Engel v. Vitale,
370 U.S. 421 (1962).......................................................................................21
Felix v. City of Bloomfield,
841 F.3d 848 (10th Cir. 2016)........................................................................20
Hawaii v. Trump,
No. CV 17-00050 DKW-KSC, 2017 WL 4639560 (D. Haw.
Oct. 17, 2017) ............................................................................................4, 18
Kerry v. Din,
135 S. Ct. 2128 (2015).......................................................................17, 18, 19
Larson v. Valente,
456 U.S. 228 (1982).......................................................................................20
Legal Assistance for Vietnamese Asylum Seekers (“LAVAS”) v. Dep’t
of State,
45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds, 519
U.S. 1 (1996)............................................................................................16, 19

McCreary Cty. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005).......................................................................................20
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ......................................................................17
United States v. Thind,
261 U.S. 204 (1923).........................................................................................8
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977).......................................................................................20
Wong Wing Hang v. INS,
360 F.2d 715 (2d Cir. 1966) ...........................................................................16
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).......................................................................................19
Constitutional Provisions, Statutes, and Rules
Act of Mar. 3, 1875 (“Page Act”), ch. 141, 18 Stat. 477 (repealed
1974) ................................................................................................................5
Act of April 29, 1902, Pub. L. No. 57-90, 32 Stat. 176 ............................................. 6
Act of July 2, 1946 (“Luce–Celler Act”), Pub. L. No. 79-483, 60 Stat.
416 ................................................................................................................. 11
Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) .................................................. 6
Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942) .......................................10
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017) ...................................... 2
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) .................................. 3
Filipino Repatriation Act, Pub. L. No. 74-202, 49 Stat. 478 (1935) .......................10
Geary Act, ch. 60, 27 Stat. 25 (1892) ........................................................................ 6
Immigration Act of 1917, Pub. L. No. 64-301, 39 Stat. 847 ..................................... 8

iv

Immigration Act of 1924 (“Asian Exclusion Act”), Pub. L. No. 68139, 43 Stat. 153 ..............................................................................................9
Immigration and Nationality Act (“McCarran–Walter Act”), Pub. L.
82-414, 66 Stat. 163 (1952) ........................................................................... 11
Immigration and Nationality Act of 1965, (“Hart–Cellar Act”), Pub. L.
89-236, 79 Stat. 911 ............................................................................. 3, 11, 19
Magnuson Act of 1943 (“Chinese Exclusion Repeal Act”), Pub. L. No.
78-199, 57 Stat. 600 ....................................................................................... 11
Naturalization Act of 1870, ch. 254, 16 Stat. 254...................................................... 5
Philippine Independence Act (“Tydings–McDuffie Act”), Pub. L. No.
73-127, 48 Stat. 456 (1934) ............................................................................. 9
Proc. No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017) .............................................. 2
8 U.S.C. § 1101 ........................................................................................................12
8 U.S.C. § 1151 ........................................................................................................12
8 U.S.C. § 1152 ....................................................................................................3, 12
8 U.S.C. § 1153 ........................................................................................................12
8 U.S.C. § 1182 ........................................................................................................17
U.S. Const. amend. I ................................................................................................20
Other Authorities
CAIR Report Shows 2017 on Track to Becoming One of Worst Years
Ever for Anti-Muslim Hate Crimes, CAIR (June 17, 2017),
https://www.cair.com/press-center/press-releases/14476-cairreport-shows-2017-on-track-to-becoming-one-of-worst-yearsever-for-anti-muslim-hate-crimes.html .........................................................21

v

Darla Cameron, Why Trump’s Travel Ban Included These Eight
Countries, Wash. Post (Oct. 18, 2017),
https://www.washingtonpost.com/world/almost-no-northkoreans-travel-to-the-us-so-why-banthem/2017/09/25/822ac340-a19c-11e7-8c37e1d99ad6aa22_story.html ................................................................................2
Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration
Law: A New Look at the Immigration and Nationality Act of
1965, 75 N.C. L. Rev. 273 (1996) .................................................................17
65 Cong. Rec. (1924) .................................................................................................9
Crim. Justice Info. Servs. Div., FBI, 2016 Hate Crime Statistics (Nov.
13, 2017), https://ucr.fbi.gov/hate-crime/2016 ..............................................21
Bill Ong Hing, Making and Remaking Asian America Through
Immigration Policy, 1850–1990 (1993) ..............................................4, 5, 6, 8
H.R. Rep. No. 89-745 (1965)...................................................................................16
H.R. Res. 683, 112th Cong. (2012)..........................................................................15
Victor M. Hwang, Brief of Amici Curiae Asian Pacific Islander Legal
Outreach and 28 Asian Pacific American Organizations, in
support of all respondents in the Six Consolidated Marriage
Cases, Lancy Woo and Cristy Chung, et al., Respondents, v. Bill
Lockyer, et al., Appellants on Appeal to the Court of Appeal of
the State of California, First Appellate District, Division Three,
13 Asian Am. L.J. 119 (2006) .......................................................................... 7
John F. Kennedy, Remarks to Delegates of the American Committee
on Italian Migration (June 11, 1963) ............................................................. 11
Brief of Karen Korematsu, Jay Hirabayashi, and Holly Yasui, et al., as
Amicus Curiae, IRAP et al v. Trump, et al., Nos. 17-2231(L),
17-2232, 17-2233, 17-2240 (Consolidated) ..................................................10
Erika Lee, The Making of Asian America: A History (2015) .................... 7, 9, 10, 11

vi

William Lee, Man Charged with Hate Crime in Phone Threat to
Muslim-American Advocate: ‘We Will Kill You’, Chi. Trib. (June
17, 2017), http://
www.chicagotribune.com/news/local/breaking/ct-man-chargedwith-phone-threat-to-muslim-american-advocate-we-will-killyou-20170617-story.html...............................................................................22
1907 Bellingham Riots, Seattle Civil Rights & Labor History Project,
http://depts.washington.edu/civilr/bham_intro.htm ........................................ 7
George Anthony Peffer, Forbidden Families: Emigration Experiences
of Chinese Women Under the Page Law, 1875–1882, 6 J. Am.
Ethnic Hist. 28 (1986) .....................................................................................5
Karthick Ramakrishnan & Farah Z. Ahmad, State of Asian Americans
and Pacific Islanders Series: A Multifaceted Portrait of a
Growing Population, AAPIDATA (Sept. 2014),
http://aapidata.com/wp-content/uploads/2015/10/AAPIDataCAP-report.pdf ..............................................................................................14
Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of
“Foreignness” in the Construction of Asian American Legal
Identity, 4 Asian Am. L.J. 71 (1997) ............................................................... 5
Herman Scheffauer, The Tide of the Turbans, 43 Forum 616 (1910) ........................ 7
S. Res. 201, 112th Cong. (2011) ..............................................................................15
Oscar M. Trelles II & James F. Bailey III, Immigration Nationality
Acts, Legislative Histories and Related Documents 1950–1978
(1979) .................................................................................................12, 13, 14
A.J. Willingham, Hate Crimes Rose in 2016–Especially Against
Muslims and Whites, CNN (Nov. 15, 2017),
http://www.cnn.com/2017/11/14/us/ hate-crimes-muslim-whitefbi-trnd/index.html .........................................................................................21

vii

INTEREST OF AMICUS CURIAE
The National Asian Pacific American Bar Association (“NAPABA”) is a
national association of Asian Pacific American (“APA”) attorneys, judges, law
professors, and law students, representing the interests of over seventy-five
national, state, and local APA bar associations and nearly 50,000 attorneys who
work in solo practices, large firms, corporations, legal services organizations,
nonprofit organizations, law schools, and government agencies. Since its inception
in 1988, NAPABA has served as a national voice for APAs, including Muslim
Americans of Asian descent, in the legal profession and has promoted justice,
equity, and opportunity for APAs. In furtherance of its mission, NAPABA opposes
discrimination, including on the basis of race, religion, and national origin, and
promotes the equitable treatment of all under the law. NAPABA and its members
have experience with, and a unique perspective on, attempts by the U.S.
government to improperly restrict admission and immigration based on nationality
or religion, of which the Executive Orders at issue are simply the latest examples.1

1

All parties consented to the filing of this brief. No counsel for a party
authored this brief in whole or in part; no counsel or party made a monetary
contribution intended to fund the preparation or submission of this brief; and no
person other than NAPABA, its members, or its counsel made a monetary
contribution to the preparation or submission of this brief.
1

ARGUMENT
I.

The Current Travel Ban Is the Latest in a Series of Executive Actions
Targeting Immigrants from Muslim-Majority Countries.
Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes

for Detecting Attempted Entry into the United States by Terrorists or Other PublicSafety Threats,” 82 Fed. Reg. 45,161 (Sept. 27, 2017) (“EO-3”), is the third in a
succession of executive actions by Donald J. Trump to prevent nationals of certain
Muslim-majority countries from traveling to the United States. Specifically, EO-3
bans all immigration by nationals of five Muslim-majority nations also covered by
the prior orders—Iran, Libya, Somalia, Syria, and Yemen—and drops Sudan, but
now includes Chad, another Muslim-majority country. All but Somalia also face
restrictions on the issuance of non-immigrant visas. EO-3 also bars travel to the
United States by certain Venezuelan government officials and their immediate
family members and all travel to the United States by North Koreans. 2
EO-3 continues the nationality-based restrictions first imposed on
January 27, 2017, in Executive Order No. 13,769, entitled “Protecting the Nation
2

The total number of people from Venezuela and North Korea affected by
EO-3 is negligible in relation to the broader impact of the ban. The Venezuelans
affected by the ban represent a tiny fraction of Venezuelans who receive visas to
enter the United States each year, and in 2016, EO-3 would have barred only 61
North Koreans from entry into the United States. Darla Cameron, Why Trump’s
Travel Ban Included These Eight Countries, Wash. Post (Oct. 18, 2017),
https://www.washingtonpost.com/world/almost-no-north-koreans-travel-to-the-usso-why-ban-them/2017/09/25/822ac340-a19c-11e7-8c37e1d99ad6aa22_story.html.
2

from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 8977 (Feb. 1,
2017) (“EO-1”), and its replacement, Executive Order No. 13,780, 82 Fed. Reg.
13,209 (Mar. 9, 2017) (“EO-2”). As explained below, EO-3 must be read in light of
what came before it, including both the antecedent orders and our government’s
lamentable history of using nationality-based restrictions in immigration as crude
proxies for discrimination on the basis of race and religion.3
II.

The Executive Orders Must Be Assessed Against the Historical
Backdrop of Nationality-Based Discrimination in U.S. Immigration,
Which Was Plagued by Abuse and Which Has Been Properly
Renounced.
During the heart of the Civil Rights Era, Congress enacted, and Lyndon

Johnson signed, the Immigration and Nationality Act of 1965, Pub. L. No. 89-236,
79 Stat. 911, to prohibit preference, priority, or discrimination in the issuance of
immigrant visas due to “race, sex, nationality, place of birth, or place of residence.”
8 U.S.C. § 1152(a)(1)(A). Marking a firm break from the invidious discrimination
in historical immigration laws, this provision sought to prevent the country from
repeating those errors. From the statute itself, the district court concluded that
“Plaintiffs are likely to succeed on the merits of their claim that the Proclamation
violates the non-discrimination provision of § 1152(a) to the extent that it bars

3

EO-1, EO-2, and EO-3, are referred to collectively as the “Executive
Orders.” Their history is well known to this Court, and is set forth in detail by the
district court in its findings of fact. JA 997–1013
3

entry by immigrants on the basis of nationality.” JA 1040. Likewise the Hawaii
district court concluded: “EO-3 plainly discriminates based on nationality in [a]
manner . . . antithetical to both Section 1152(a) and the founding principles of this
Nation.” Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 4639560, at *1
(D. Haw. Oct. 17, 2017).
A.

EO-3 Echoes Historical Discrimination in the Application of
Immigration Laws Based upon National Origin.

APAs are acutely familiar with the impact of exclusionary immigration laws,
having long been the subjects of systematic and expansive restrictions driven by
racial, ethnic, and religious animus. These historical laws not only excluded people
from Asian countries, but hurt those already in the United States by legitimizing
and validating ugly stereotypes and inequalities. As described below, the laws’
negative impacts have been clear even when the laws were facially neutral.
Asians first began migrating to the United States mainland in significant
numbers in the mid-1800s, led by Chinese nationals. See Bill Ong Hing, Making
and Remaking Asian America Through Immigration Policy, 1850–1990, at 19–20
(1993). As conditions weakened in their homelands, economic opportunity
beckoned Asian laborers to the United States. The discovery of gold and westward
expansion fueled demand for low-wage labor. Industrial employers actively
recruited Chinese nationals to fill some of the most demanding jobs, particularly in
domestic service, mining, and railroad construction. Id. at 20.
4

However, the resulting growth in the immigrant labor population provoked
anger and resentment among native-born workers eager for work and better wages.
Id. at 21. Chinese immigrants, in particular, became targets of fierce hostility and
violence. The so-called “Yellow Peril” refers to the widespread characterization of
Chinese immigrants as “unassimilable aliens” with peculiar and threatening
qualities. See Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of
“Foreignness” in the Construction of Asian American Legal Identity, 4 Asian Am.
L.J. 71, 86–89 (1997).
Congress catered to this xenophobia and racism by passing a series of laws
that discouraged and ultimately barred immigration from China and other Asian
countries. These laws marked the first time the federal government broadly enacted
and enforced an immigration admissions policy that defined itself based on whom
it excluded. 4 The first such law came toward the end of Reconstruction, when
Congress enacted the Page Act. Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (repealed
1974). Barring the entry of Asian immigrants considered “undesirable,” the Page
Act was largely enforced against Asian women, who were presumed to be
prostitutes simply by virtue of their ethnicity. See George Anthony Peffer,

4

Naturalization and citizenship laws have always limited the scope of who
could be a citizen, but the same was not so for rules on entry to the United States.
The Naturalization Act of 1870, ch. 254, 16 Stat. 254, which barred Asians from
naturalization, prefaced the era of Asian exclusion.
5

Forbidden Families: Emigration Experiences of Chinese Women Under the Page
Law, 1875–1882, 6 J. Am. Ethnic Hist. 28, 28–46 (1986).
A few years later, Congress responded to persistent anti-Chinese fervor with
the Chinese Exclusion Act on May 6, 1882, ch. 126, 22 Stat. 58, the first federal
law to exclude people on the basis of their nationality. On the premise that the
“coming of Chinese laborers . . . endanger[ed] the good order” of areas in the
United States, the Act provided that “[i]t shall not be lawful for any Chinese
laborer to come, or, having so come after the expiration of said ninety days, to
remain within the United States.” Id. § 1. The Chinese Exclusion Act halted
immigration of Chinese laborers for ten years, prohibited Chinese nationals from
becoming U.S. citizens, and uniquely burdened Chinese laborers who were already
legally present and wished to leave and re-enter the United States. Congress first
extended the exclusionary period by ten years in 1892 with the Geary Act, ch. 60,
27 Stat. 25, and then indefinitely in the Act of April 29, 1902, Pub. L. No. 57-90,
32 Stat. 176.
After the Chinese exclusion laws foreclosed employers from importing
Chinese laborers, immigrants from Japan, Korea, India, and the Philippines began
coming in larger numbers. See Hing, supra, at 27–31. As with Chinese nationals
before them, these immigrants encountered strong nativist opposition as their
numbers rose. Id. at 32.

6

The exclusionary policies of the U.S. government enforced and validated
xenophobic and racist sentiments and enabled violent backlash. Nativist Americans
established the Asiatic Exclusion League in the early 20th century to prevent
immigration by people of Asian origin to the United States and Canada, which had
a similar nationality-based system of immigration at the time. 5 On September 4,
1907, the Asiatic Exclusion League and labor unions led the “Bellingham Riots” in
Bellingham, Washington, to expel South Asian immigrants from local lumber
mills. See 1907 Bellingham Riots, Seattle Civil Rights & Labor History Project,
http://depts.washington.edu/civilr/bham_intro.htm; see also Erika Lee, The Making
of Asian America: A History 163–64 (2015). Herman Scheffauer’s The Tide of the
Turbans noted that: “Again on the far outposts of the western world rises the
spectre of the Yellow Peril and confronts the affrighted pale-faces,” and lamented

5

See Victor M. Hwang, Brief of Amici Curiae Asian Pacific Islander Legal
Outreach and 28 Asian Pacific American Organizations, in support of all
respondents in the Six Consolidated Marriage Cases, Lancy Woo and Cristy
Chung, et al., Respondents, v. Bill Lockyer, et al., Appellants on Appeal to the
Court of Appeal of the State of California, First Appellate District, Division Three,
13 Asian Am. L.J. 119, 132 (2006) (the Asiatic Exclusion League was formed for
the stated purpose of preserving “the Caucasian race upon American soil . . . [by]
adoption of all possible measures to prevent or minimize the immigration of
Asiatics to America” (internal quotation marks omitted)).
7

“a threatening inundation of Hindoos over the Pacific Coast,” which it proposed to
address by legislation. 43 Forum 616 (1910). 6
Congress responded to nativist concerns about these growing populations in
the same way that it had to the perceived threat of Chinese immigrants. The
Immigration Act of 1917, Pub. L. No. 64-301, 39 Stat. 874, created the “Asiatic
Barred Zone,” which extended the Chinese exclusion laws to include nationals of
other countries in South Asia, Southeast Asia, the Polynesian Islands, and parts of
Central Asia.7 The racial undertones of this act were such that, in addressing
whether a “high-caste Hindu, of full Indian blood” was a “white person,” eligible
to naturalize under the laws at the time, the Supreme Court inferred from it that
Congress would have “a similar [negative] attitude toward Asiatic naturalization.”
United States v. Thind, 261 U.S. 204, 206, 215 (1923). 8

6

The term “Hindoo” or “Hindu” was applied to all South Asian persons,
regardless of faith. The “Tide of Turbans” referenced the distinctive turban worn
by members of the Sikh faith.
7

An executive agreement, the Gentlemen’s Agreement, reached in 1907 and
1908, restricted the immigration of Japanese laborers, as well as Koreans, whose
nation was under Japanese forced occupation between 1910 and 1945. See Hing,
supra, at 29.
8

Bhagat Singh Thind was a member of the Sikh faith, though described as
“Hindu” as explained in note 6. The question posed was whether a South Asian of
Caucasian ancestry was distinct from “Asiatic” or other racial groups under the
prevailing racial theories and qualified as “white” under U.S. law. See Thind, 261
at 209–14 (Justice Sutherland’s discussion of theories of racial classification).

8

A few years later, the Immigration Act of 1924 (the “Asian Exclusion Act”),
Pub. L. No. 68-139, 43 Stat. 153, imposed immigration caps based upon national
origin and prohibited immigration of persons ineligible to become citizens, which
effectively barred people from Asian countries from immigrating altogether. As
explained by an opponent of the law, its nationality restrictions were driven by
animus against religious and ethnic groups—such as Jews—by restricting
immigration from countries where they lived in larger numbers, just as the law
treated other “inferior peoples”:
Of course the Jews too are aimed at, not directly, because they have no
country in Europe they can call their own, but they are set down
among the inferior peoples. Much of the animus against Poland and
Russia, old and new, with the countries that have arisen from the ruins
of the dead Czar’s European dominions, is directed against the Jew.
65 Cong. Rec. 5929–32 (1924) (statement by Rep. Clancy).
Because of then-U.S. jurisdiction over the Philippines, Filipinos were still
able to migrate to the United States. E. Lee, supra, at 157. However, U.S.
citizenship remained out of reach and Filipinos could not escape racial animus, as
they were seen to present an economic threat and to “upset the existing racial
hierarchy between whites and nonwhites.” Id. at 157, 185. Anti-Filipino agitation
culminated in passage of the Philippine Independence Act (“Tydings–McDuffie
Act”), Pub. L. No. 73-127, 48 Stat. 456 (1934), which granted independence to the
Philippines and changed the status of Filipinos from U.S. nationals to “aliens,”

9

making them subject to the same restrictions as other Asian groups. The next year,
Filipino nationals already in the United States became subject to deportation and
repatriation. Filipino Repatriation Act, Pub. L. No. 74-202, 49 Stat. 478 (1935).9
The exclusionary racism and xenophobia underpinning these laws
crystallized and escalated during World War II, when the U.S. government forcibly
incarcerated more than 110,000 permanent residents and U.S. citizens in
internment camps on the basis of their Japanese ancestry. 10
B.

In 1965, Congress and President Johnson Dismantled Quotas
Based upon Nationality and Barred Distinctions Based upon
“Race, Sex, Nationality, Place of Birth, or Place of Residence.”

Starting during World War II and continuing over the next twenty years,
Congress gradually loosened restrictions on Asian immigration to further the
interests of the United States on the world stage.

9

The idea, still prevalent today, that race keeps one from being an American,
particularly resonated with Filipinos affected by the new restrictions: “We have
come to the land of the Free and where the people are treated equal only to find
ourselves without constitutional rights . . . . We . . . did not realize that our oriental
origin barred us as human being in the eyes of the law.” E. Lee, supra, at 185
(citing June 6, 1935 letter from Pedro B. Duncan of New York City to the
Secretary of Labor and other letters).
10

See Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942). For a further
discussion of the improper justification for the Japanese American incarceration,
see Brief of Karen Korematsu, Jay Hirabayashi, and Holly Yasui, et al., as Amicus
Curiae, IRAP et al v. Trump, et al., Nos. 17-2231(L), 17-2232, 17-2233, 17-2240
(Consolidated).
10

First, at the urging of Franklin D. Roosevelt, who called the exclusion of
Chinese citizens by the United States “a historic mistake,” E. Lee, supra, at 256,
Congress repealed the Chinese exclusion laws with the Magnuson Act of 1943 (the
“Chinese Exclusion Repeal Act”), Pub. L. No. 78-199, 57 Stat. 600. Then, the Act
of July 2, 1946 (the “Luce–Celler Act”), Pub. L. No. 79-483, 60 Stat. 416, allowed
100 Filipinos and Indians, each, to immigrate per year and permitted their
naturalization. 11
Then, in 1952, the Immigration and Nationality Act (the “McCarran–Walter
Act”), Pub. L. 82-414, 66 Stat. 163, repealed the Asiatic Barred Zone and
eliminated the racial bar on citizenship. Nevertheless, it left in place national-origin
quotas intended to heavily favor immigration from Northern and Western Europe,
with unmistakable racial, religious, and ethnic consequences.
After decades of highly regimented immigration quotas tied to prospective
immigrants’ countries of origin, the Immigration and Nationality Act of 1965 (the
“Hart–Cellar Act”), Pub. L. 89-236, 79 Stat. 911, marked a dramatic turning point.
Like Harry S. Truman and Dwight D. Eisenhower before him, John F. Kennedy
opposed the national-origins system, calling it “nearly intolerable” and inequitable.
Remarks to Delegates of the American Committee on Italian Migration, The

11

This bill allowed Dalip Singh Saund to become a naturalized citizen. He
would become the first APA member of Congress. See Lee, supra, at 373–75, 392.
11

American Presidency Project (June 11, 1963), available at http://
www.presidency.ucsb.edu/ws/?pid=9269. In 1965, Congress finally answered these
calls, abolishing the national-origin quotas in an act signed by President Johnson
and providing that “no person shall receive any preference or priority or be
discriminated against in the issuance of an immigrant visa because of the person’s
race, sex, nationality, place of birth, or place of residence,” subject only to certain
specified exceptions. 8 U.S.C. § 1152(a)(1)(A). 12
The legislative history of 8 U.S.C. § 1152(a)(1)(A) confirms that Congress
intended to reject and repudiate the “national origins system” as an inequitable and
irrelevant basis for admission decisions. For instance, a member of Congress
opined that the system “embarrasse[d] us in the eyes of other nations, . . . create[d]
cruel and unnecessary hardship for many of our own citizens with relatives abroad,
and . . . [was] a source of loss to the economic and creative strength of our
country.” Oscar M. Trelles II & James F. Bailey III, Immigration Nationality Acts,
Legislative Histories and Related Documents 1950–1978, at 417 (1979). Attorney
General Robert F. Kennedy lamented that the national-origins system harmed
12

The excepted subsections address “[p]er country levels for familysponsored and employment-based immigrants,” 8 U.S.C. § 1152(a)(2), statutory
creation of “special immigrant” categories for preferred treatment (e.g., certain
Panamanian nationals who worked in the Canal Zone, etc.), 8 U.S.C.
§ 1101(a)(27), admission of immediate relatives of U.S. citizens, 8 U.S.C.
§ 1151(b)(2)(A)(i), and the statutorily created system of allocation of immigrant
visas, 8 U.S.C. § 1153.
12

citizens with relatives abroad, “separat[ing] families coldly and arbitrarily.” Id.
at 411. Indeed, it confirms Congress overwhelmingly regarded the system as an
outdated, arbitrary, and, above all, un-American basis upon which to decide whom
to admit into the country.
Statements in the legislative history resoundingly denounced the use of
nationality in immigration decisions, as it furthered the un-American belief that
individuals born in certain countries were more desirable or worthy of admission
than others. Prior to 1965, nationality-based immigration restrictions excluded
nationals of Asian countries based upon unfounded and unjust stereotypes that
conflated race, ethnicity, and religion. Several members of Congress echoed the
sentiments President Kennedy expressed in a 1963 letter to Congress:
The use of a national origins system is without basis in either logic or
reason. It neither satisfies a national need nor accomplishes an
international purpose. In an age of interdependence among nations,
such a system is an anachronism, for it discriminates among
admission into the United States on the basis of accident of birth.
Id. at 2 (quoting Kennedy, John F., 1964 Pub. Papers, 594–97 (July 23, 1963)).
President Kennedy’s reference to prohibiting discrimination in “admission
into the United States,” confirms the contemporaneous understanding that the 1965
Act foreclosed discrimination in admission, not just for immigration. Indeed, it
would be perverse to provide more protection to foreign nationals seeking to
immigrate to the United States than to those merely seeking to visit family. Not

13

surprisingly, during congressional hearings on the 1965 Act, Attorney General
Kennedy contended that abolition of the national-origins system sought:
[N]ot to penalize an individual because of the country that he comes
from or the country in which he was born, not to make some of our
people feel as if they were second-class citizens. . . . [Abolition of the
national origins system] will promote the interests of the United States
and will remove legislation which is a continuous insult to countries
abroad, many of whom are closely allied with us.
Id. at 420. If certain citizens’ relatives cannot visit from abroad, or are prohibited
from obtaining visas on equal footing with those of others, they cannot help but
feel that they are themselves “second-class citizens” in the eyes of the U.S.
government.
In light of this history, the reference in 8 U.S.C. § 1152(a)(1)(A) to the
prohibition against discrimination in the “issuance of immigration visas” must not
be read to sanction discrimination in issuance of nonimmigrant visas. If it were, the
Executive could discriminate in the very manner that the act sought to prevent.
C.

By Promoting Discrimination, EO-3 Is Contrary to Statutory
Language and Purpose.

Today, nearly two-thirds of APAs are foreign-born. Karthick Ramakrishnan
& Farah Z. Ahmad, State of Asian Americans and Pacific Islanders Series: A
Multifaceted Portrait of a Growing Population 23, AAPIDATA (Sept. 2014),
http://aapidata.com/wp-content/uploads/2015/10/AAPIData-CAP-report.pdf. The
experience of many APA families in the United States began with the opportunity

14

to immigrate that was denied to their ancestors. Nevertheless, the harmful legacies
of those earlier laws—which tore apart families; denied the right to naturalize and
the rights that accompany citizenship to lawful immigrants; and validated
xenophobia, racism, and other invidious stereotypes—persist.
Indeed, Congress recently reaffirmed its condemnation of the Chinese
exclusion laws with the passage of resolutions expressing regret for those laws.
S. Res. 201, 112th Cong. (2011); H.R. Res. 683, 112th Cong. (2012). The Senate
resolution explicitly recognized that “[the] framework of anti-Chinese legislation,
including the Chinese Exclusion Act, is incompatible with the basic founding
principles recognized in the Declaration of Independence that all persons are
created equal.” S. Res. 201, 112th Cong. (2011).
Having long been the subject of exclusionary immigration laws, APAs know
the lasting pain and injury that result from the use of national origin as a basis for
preference or discrimination in immigration laws. EO-3 and its predecessors
represent an unwelcome return to a pre-Civil Rights Era approach to immigration
when prospective immigrants were excluded based upon their national origin,
which served as a pretext for discrimination on the basis of the predominant races,
religions, and ethnicities in those countries.
As the district court recognized, the Immigration and Nationality Act of
1965 “was adopted expressly to abolish the ‘national origins system’ imposed by

15

the Immigration Act of 1924, which keyed yearly immigration quotas for particular
nations to . . . ‘maintain, to some degree, the ethnic composition of the American
people.’” JA 1034–35 (quoting H.R. Rep. No. 89-745, at 9 (1965)).
This accords with the D.C. Circuit’s holding that “Congress could hardly
have chosen more explicit language” in barring discrimination against the issuance
of a visa because of a person’s nationality or place of residence. Legal Assistance
for Vietnamese Asylum Seekers v. Dep’t of State (“LAVAS”), 45 F.3d 469, 472–73
(D.C. Cir. 1995) (finding “Congress has unambiguously directed that no
nationality-based discrimination shall occur”); see also Wong Wing Hang v. INS,
360 F.2d 715, 719 (2d Cir. 1966) (concluding that nationality is an impermissible
basis for deportation and “invidious discrimination against a particular race or
group” is prohibited as a basis for deportation); Abdullah v. INS, 184 F.3d 158,
166–67 (2d Cir. 1999) (“[T]he Constitution does ‘not permit an immigration
official, in the absence of [lawful quota] policies, to . . . discriminate on the basis
of race and national origin.’”) (citing Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d
Cir. 1982)).
Consistent with the contemporaneous and monumental Civil Rights Act of
1964, which outlawed discrimination on the basis of “race color, religion, sex, or
national origin,” and the Voting Rights Act of 1965, the Immigration and
Nationality Act of 1965 marked a departure from the nation’s past reliance upon

16

such characteristics to restrict entry into the country. See Olsen v. Albright, 990
F. Supp. 31, 38 (D.D.C. 1997) (noting that policies that discriminate “based on
impermissible generalizations and stereotypes” contravene Section 1152(a)(1)(A));
Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New
Look at the Immigration and Nationality Act of 1965, 75 N.C. L. Rev. 273, 273
(1996) (“Congress eased restrictions on Asian immigration into the United States
in an effort to equalize immigration opportunities for groups who had been the
victims of discriminatory immigration laws in the past”).
EO-3, like its predecessors, seeks authorization for nationality-based
discrimination in the broad language of Section 1182(f), which permits restrictions
or suspension of entry “[w]henever the President finds that the entry of . . . any
class of aliens into the United States would be detrimental to the interests of the
United States . . . .” However, the government’s construction of that provision
obviates the “specific criteria for determining terrorism-related inadmissibility,” in
Section 1182(a)—Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J.,
concurring)—as well as the prohibition on nationality restrictions in Section
1152(a)(1)(A). If Section 1182(f) were to permit the Executive to bar issuance of
visas to citizens of six Muslim-majority nations as potential terrorists on the basis
of their nationality, it would defy Justice Kennedy’s controlling opinion in Din,
which explains that the Executive’s authority to exclude an individual from

17

admission on the basis of claimed terrorist activity “rest[s] on a determination that
[he or she does] not satisfy the . . . requirements” of 8 U.S.C. § 1182(a)(3)(B). Id.
Similarly, other courts have held that Section 1182(f) “provides a safeguard
against the danger posed by any particular case or class of cases that is not covered
by one of the categories in section 1182(a).” Abourezk v. Reagan, 785 F.2d 1043,
1049 n.2 (D.C. Cir. 1986) (concluding that authority under one subsection cannot
“swallow” the limitations imposed by Congress on inadmissibility under other
parts of Section 1182) (emphasis added), aff’d mem., 484 U.S. 1 (1987). Applying
the same principle of construction, Allende v. Shultz held that subsections of 8
U.S.C. § 1182(a) could not be interpreted so as to render other subsections
superfluous. 845 F.2d 1111, 1118 (1st Cir. 1988).
As the district court recognized, “[EO-3] is unprecedented in its combination
of a broad sweep impacting millions of people based on their nationality, its
imposition of additional criteria for visa issuance, and its arguable conflict with
Congressional immigration policy.” JA 1051. In a separate challenge to EO-3, the
Hawaii district court was even more emphatic, correctly concluding that “EO-3
plainly violates Section 1152(a) by singling out immigrant visa applicants seeking
entry to the United States on the basis of nationality,” and, as such, is not within
“the scope of the President’s authority under Section 1182(f).” Hawaii, 2017 WL
4639560, at *13.

18

D.

The History of Discrimination Informs the Present Dispute.

The 1965 amendments to the Immigration and Nationality Act sought to
constrain the Executive’s authority to afford any preference, priority, or
discrimination in immigration based on nationality, place of birth, or place of
residence, among other characteristics. Pub. L. No. 89-236 (1965) (codified at 8
U.S.C. § 1152(a)(1)(A)). The D.C. Circuit has interpreted this provision to apply to
admission as well, holding that “Congress has unambiguously directed that no
nationality-based discrimination shall occur.” LAVAS, 45 F.3d at 472–73.
Thus, the President lacked statutory authority or discretion to issue EO-3.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson,
J., concurring in the judgment) (observing that the President’s power is at “its
lowest ebb” when it is “incompatible with the expressed . . . will of Congress”).
Congress relegated this kind of discrimination into the past in 1965, aligning our
immigration laws with notions of equality etched into the nation’s conscience
during the Civil Rights Era.
The Supreme Court, in Din, recognized that courts “look behind” the
government’s express rationale where there is “an affirmative showing of bad
faith.” 135 S. Ct. at 2141; see also Am. Acad. of Religion v. Napolitano, 573 F.3d
115, 137 (2d Cir. 2009) (recognizing that a well-supported allegation of bad faith
could render an immigration decision not bona fide). The long history of abusing

19

nationality-based restrictions on immigration to target other groups should also
inform the Court’s consideration of whether it comports with the Establishment
Clause of the United States Constitution. U.S. Const. amend. I, cl. 1; see Larson v.
Valente, 456 U.S. 228, 244, 254–55 (1982) (“The clearest command of the
Establishment Clause is that one religious denomination cannot be officially
preferred over another.”); see also Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266–68 (1977).
The district court found unmistakable animus against Muslims when it
examined the Executive’s statements concerning EO-3:
The reasonable observer using a “head with common sense” would
rely on the statements of the President to discern the purpose of a
Presidential Proclamation. [McCreary Cty. v. Am. Civil Liberties
Union of Ky., 545 U.S. 844, 874 (2005)]. Here, those statements do
not offer “persuasive” rejection of the President’s prior calls for a
Muslim ban, or his stated intention to use a ban on certain “dangerous
territory” to effectuate a Muslim ban, [Felix v. City of Bloomfield, 841
F.3d 848, 863 (10th Cir. 2016)], nor do they show that the stated
intention to impose a Muslim ban has been “repealed or otherwise
repudiated,” McCreary, 545 U.S. at 871–72. Rather, they cast the
Proclamation as the inextricable re-animation of the twice-enjoined
Muslim ban, and, in echoes of McCreary, convey the message that the
third iteration of the ban—no longer temporary—will be the
“enhanced expression” of the earlier ones. Id. at 872.
JA 1075. The barely concealed animus behind the Executive Orders is all the more
glaring when set against the history of such discrimination that Congress expressly
tried to stamp out, and ignoring such evidence would abet pretextual
discrimination against people based upon religion or nationality.
20

Rather than exhaustively recite the extensive evidence of animus in EO-3,
we submit that this Court should consider the evident deleterious effect that the
Executive Orders have had on Muslims and others from the affected nations in the
United States. As the Supreme Court observed in Engel v. Vitale, prohibiting
establishment of religion forestalls “the inevitable result [of] hatred, disrespect and
even contempt of those who held contrary beliefs.” 370 U.S. 421, 431 (1962)
(emphasis added).) The Federal Bureau of Investigation’s recently released hatecrimes statistics for 2016 demonstrate anti-Muslim hate crimes grew 19 percent to
307 documented incidents, the fastest rate of any category, with a spike in hate
crimes around the election and in the last quarter of the year. 13 Overall, the United
States saw an increase in hate crimes over the previous year. The trend has
continued in 2017, with a further uptick in hate crimes and harassment against
Muslims in the first half of the year, as found by the Council on American-Islamic
Relations (“CAIR”), which identified “ethnicity or national origin” as the most
common “trigger” for persecution. CAIR Report Shows 2017 on Track to Becoming
One of Worst Years Ever for Anti-Muslim Hate Crimes, CAIR (June 17, 2017),

13

See A.J. Willingham, Hate Crimes Rose in 2016–Especially Against
Muslims and Whites, CNN (Nov. 15, 2017), http://www.cnn.com/2017/11/14/us/
hate-crimes-muslim-white-fbi-trnd/index.html; see also Crim. Justice Info. Servs.
Div., FBI, 2016 Hate Crime Statistics, (Nov. 13, 2017), https://ucr.fbi.gov/hatecrime/2016.
21

https://www.cair.com/press-center/press-releases/14476-cair-report-shows-2017on-track-to-becoming-one-of-worst-years-ever-for-anti-muslim-hate-crimes.html.
Indeed, the deputy director of CAIR in Chicago received threats by a man
ultimately charged with a felony hate crime for leaving messages that began: “Hey.
Guess what? This is America calling, . . . . You are not welcome here. Take your
[double expletive] back to Syria. We will kill you.” William Lee, Man Charged
with Hate Crime in Phone Threat to Muslim-American Advocate: ‘We Will Kill
You’, Chi. Trib. (June 17, 2017) (alteration in original), http://
www.chicagotribune.com/news/local/breaking/ct-man-charged-with-phone-threatto-muslim-american-advocate-we-will-kill-you-20170617-story.html. This
sentiment is reflected in the plaintiffs’ claim that “[EO-3] send[s] the message that
Muslims . . . are not welcome in this country and that Muslim communities are bad
or dangerous. . . . [I]t is another attempt to make sure that Muslims such as she are
viewed as different from other Americans, and sends the message that Muslims
should be singled out for worse treatment.” JA 535–36.
Such discrimination contravenes the limitations Congress placed on the
grant of authority to the President under the Immigration and Nationality Act and
violates the First Amendment’s clear prohibition on establishment of religion.
Having long endured discrimination based on national origin, APAs keenly

22

appreciate the harmful effects that government sanction for such discrimination can
have and urge this Court to not allow EO-3 to stand.
CONCLUSION
For nearly a century, the U.S. government severely restricted and at times
prohibited the entry, immigration, and naturalization of people from Asian nations.
In 1965, Congress and the President recognized that this practice reflected animus
toward people of races, ethnicities, and religions that predominated in those
countries and restricted the use of nationality in immigration going forward. Many
APAs are in the United States today because Congress concluded that it could no
longer ignore the harm and injustice of government-sanctioned discrimination on
the basis of “race, sex, nationality, place of birth, [and] place of residence.”

23

EO-3 seeks to side-step these restrictions on nationality-based
discrimination, as well as the constitutional establishment clause and equal
protection rights they reflect, to discriminate against nationals of six Muslimmajority countries. This Court should prevent the President from exercising such
authority, lest it presage a return to the era of invidious discrimination that
Congress sought to put behind us more than fifty years ago.
Dated: November 17, 2017

Tina R. Matsuoka
Navdeep Singh
Meredith S.H. Higashi
Rachana Pathak
Albert Giang
National Asian Pacific American Bar
Association
1612 K Street, Northwest, Suite 510
Washington, D.C. 20006
202.775.9555
202.775.9333 fax

Respectfully submitted,
s/Joshua David Rogaczewski
Joshua David Rogaczewski*
([e-mail])
James W. Kim†
([e-mail])
Philip J. Levine† ([e-mail])
McDermott Will & Emery LLP
500 North Capitol Street, Northwest
Washington, D.C. 20001
202.756.8195
202.591.2757 fax
*

Of Counsel to NAPABA

Counsel to NAPABA
Of Counsel to NAPABA

†

24

CERTIFICATE OF COMPLIANCE WITH TYPE–VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE
REQUIREMENTS
1.

This brief complies with the type–volume limitation of Federal Rule

of Appellate Procedure 29(a)(5), because it contains 5,561 words, excluding the
parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).
2.

This brief complies with the typeface requirements of Federal Rules

of Appellate Procedure 29(a)(4) and 32(a)(5) and the type-style requirements of
Federal Rules of Appellate Procedure 29(a)(4) and 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word (version
14.0.7172.5000 (32-bit)) with 14-point Times New Roman.
Dated: November 17, 2017
s/Joshua David Rogaczewski
Joshua David Rogaczewski
Counsel to NAPABA

25

PROOF OF SERVICE
I hereby certify that the foregoing Amicus-Curiae Brief of NAPABA
Supporting Plaintiffs and Affirmance, was filed on November 17, 2017, using
the Court’s Electronic Case Filing system, which automatically generates and
sends by email a Notice of Docket Activity to all registered attorneys participating
in this case.

s/Joshua David Rogaczewski
Joshua David Rogaczewski

26