Intl. Refugee Assistance v. Donald J. Trump

Filing 159

MOTION by Appellees Eblal Zakzok, Fahed Muqbil, Sumaya Hamadmad, John Doe #1, Jane Doe #2 and Jane Doe #3 in 17-2233 for judicial notice of statements of the President and his spokesperson on November 29, 2017 , to supplement record. Date and method of service: 12/04/2017 ecf. [1000202965] [17-2231, 17-2232, 17-2233, 17-2240] Robert Atkins [Entered: 12/04/2017 07:15 PM]

Nos. 17-2231(L), 17-2232, 17-2233, 17-2240 (Consolidated)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs-Appellees,
IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs-Appellees,
EBLAL ZAKZOK, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.

On Appeal from the United States District Court
for the District of Maryland, Southern Division
(8:17-cv-00361-TDC)
PLAINTIFFS-APPELLEES’ MOTION FOR JUDICIAL NOTICE
AND TO SUPPLEMENT THE RECORD
Lena F. Masri
Gadeir Abbas
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS
453 New Jersey Avenue SE
Washington, D.C. 20003
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Robert A. Atkins
Charles E. Davidow
Liza Velazquez
Andrew J. Ehrlich
Steven C. Herzog
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Additional counsel on next page

Faiza Patel
Michael Price
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
120 Broadway, Suite 1750
New York, NY 10271
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Jethro Eisenstein
PROFETA & EISENSTEIN
45 Broadway, Suite 2200
New York, New York 10006
Tel.: [phone]
Fax: [phone]
[e-mail]

Counsel for Plaintiffs-Appellees Zakzok, et al.
Karen C. Tumlin
Nicholas Espíritu
Melissa S. Keaney
Esther Sung
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Boulevard,
Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin B. Cox
NATIONAL IMMIGRATION LAW
CENTER
P.O. Box 170208
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]

Omar C. Jadwat
Lee Gelernt
Hina Shamsi
Hugh Handeyside
Sarah L. Mehta
David Hausman
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Additional counsel on next page

Kathryn Claire Meyer
Mariko Hirose
INTERNATIONAL REFUGEE
ASSISTANCE PROJECT
40 Rector Street, 9th Floor
New York, New York 10006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David Rocah
Deborah A. Jeon
Sonia Kumar
Nicholas Taichi Steiner
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Cecillia D. Wang
Cody H. Wofsy
Spencer E. Amdur
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
David Cole
Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs-Appellees IRAP, et al.
Johnathan Smith
Sirine Shebaya
MUSLIM ADVOCATES
P.O. Box 66408
Washington, D.C. 20035
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Richard B. Katskee
Eric Rothschild
Andrew L. Nellis^

Mark H. Lynch
Mark W. Mosier
Herbert L. Fenster
Jose E. Arvelo
John W. Sorrenti
Katherine E. Cahoy
Rebecca G. Van Tassell
Karun Tilak
COVINGTON & BURLING LLP
One City Center
850 10th Street, NW
Additional counsel on next page

AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE
1310 L St. NW, Ste. 200
Washington, D.C. 2005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Washington, D.C. 20001
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs-Appellees I.A.A.B., et al.
^Admitted only in New York; supervised by Richard B. Katskee, a member
of the D.C. Bar

1.

Plaintiffs file this motion to request (1) that the Court take judicial

notice of, and supplement the appellate record to add evidence of, recent
official statements and actions of the President, and (2) that the appellate
record be supplemented to add four press articles discussed in the parties’
briefs.1
Legal Standard
2.

This Court “may judicially notice a fact that is not subject to

reasonable dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b)(2); Martin v. Duffy, 858 F.3d 239, 253 n.4 (4th Cir. 2017).
3.

This Court also “has the power, either on motion or of its own accord,

to require that the record be corrected or supplemented.” Loc. R. 10(d). An
appellate court may supplement the record where new evidence informs the
“appropriateness of injunctive relief,” In re Application of Adan, 437 F.3d
381, 398 n.3 (3d Cir. 2006) (citing Goland v. Cent. Intelligence Agency, 607
F.2d 339, 370 n.7 (D.C. Cir.1978)), and where “remanding the case to the
district court for consideration of the additional material would be contrary
to the interests of justice and the efficient use of judicial resources,” Acumed
LLC v. Advanced Surgical Servs., 561 F.3d 199, 226 (3d Cir. 2009).

1

Counsel for all parties have been informed of the intended filing of this
motion. All Plaintiffs consent to the granting of this motion. Defendants
do not consent, but have not indicated whether they intend to file a
response in opposition.

Argument
4.

On November 29, 2017, the President used his Twitter account to

publish to his more than 43 million followers three videos from the account
of Jayda Fransen, the Deputy Leader of Britain First, an extremist political
party in the United Kingdom, the mission of which includes opposition to
Islam.2
5.

Each of the three videos distributed by the President depicts an act of

violence or the destruction of a Christian religious symbol coupled with a
caption attributing the actions depicted to a “Muslim” or “Islamist.” In at
least one case, the claim is demonstrably false, and in the rest remains
unverified. The first video is captioned “Muslim migrant beats up Dutch
boy on crutches!”3 It does not in fact depict a Muslim migrant.4 The second
2

Principles of the Britain First Movement, Britain First,
https://www.britainfirst.org/principles (last visited Dec. 4, 2017) (Herzog
Decl. Ex. E).
3

Jayda Fransen (@JaydaBF), Twitter (Nov. 28, 2017, 12:40 PM),
https://twitter.com/JaydaBF/status/935609305574903812 (retweeted by
Donald J. Trump (@realDonaldTrump) (Nov. 29, 2017, 6:37 AM)) (Herzog
Decl. Ex. A).
4

Peter Baker & Eileen Sullivan, Trump Shares Inflammatory Anti-Muslim
Videos, and Britain’s Leader Condemns Them, N.Y. Times (Nov. 29, 2017),
https://www.nytimes.com/2017/11/29/us/politics/trump-anti-muslim-videosjayda-fransen.html (Herzog Decl. Ex. F).

The Netherlands Embassy also responded to the President and confirmed
that the individual in the video was not a migrant: “The perpetrator of the
violent act in this video was born and raised in the Netherlands.”
Netherlands Embassy (@NLintheUSA), Twitter (Nov. 29, 2017, 11:26 AM),
https://twitter.com/NLintheUSA/status/935953115249086464 (Herzog Decl.
Ex. G).
2

video is captioned “Muslim Destroys a Statue of Virgin Mary!”5 The third
video is captioned “Islamist mob pushes teenage boy off roof and beats him
to death!”6
6.

The President’s spokesperson subsequently asserted that “security and

public safety for the American people . . . are the issues [the President] was
raising with [those] tweets,” that “[t]he President has been talking about
these security issues for years now, from the campaign trail to the White
House,” and that “the President has addressed these issues with the travel
order that he issued earlier this year and the companion proclamation.”7
7.

This evidence emerged subsequent to the district court’s injunction.

While Plaintiffs’ arguments before this Court remain the same, this new
evidence provides further support for those arguments because the
President’s statements express hostility towards Muslims and foment

5

Jayda Fransen (@JaydaBF), Twitter (Nov. 29, 2017, 1:40 AM)
https://twitter.com/JaydaBF/status/935805606447013888 (retweeted by
Donald J. Trump (@realDonaldTrump) (Nov. 29, 2017, 6:43 AM)) (Herzog
Decl. Ex. B).
6

Jayda Fransen (@JaydaBF), Twitter (Nov. 28, 2017, 11:40 PM),
https://twitter.com/JaydaBF/status/935775552102981633 (retweeted by
Donald J. Trump (@realDonaldTrump) (Nov. 29, 2017, 6:44 AM)) (Herzog
Decl. Ex. C).

7

The White House has published a transcript of these remarks on its
official website. Press Gaggle by Principal Deputy Press Secretary Raj
Shah en route St. Louis, MO, Office of the Press Secretary, The White
House (Nov. 29, 2017), https://www.whitehouse.gov/the-pressoffice/2017/11/29/press-gaggle-principal-deputy-press-secretary-raj-shahen-route-st-louis (Herzog Decl. Ex. D).
3

conflict between Christians and Muslims in the United States, and his
spokesperson’s remarks directly link the anti-Muslim statements to the
Proclamation itself. Cf. Gov’t Opening Br. 52, Gov’t Reply 26.
8.

Plaintiffs respectfully request that the Court take judicial notice of the

President’s November 29, 2017 tweets, which are set forth in Exhibits A–C
of the Herzog Declaration, as well as the subsequent statements by his
spokesperson, which are set forth as Exhibit D of the Herzog Declaration.
Plaintiffs additionally move to supplement the record to include these
materials.
9.

The President’s statements cannot reasonably be disputed and the

accuracy of the source—the President or his spokesperson—cannot be
questioned. The government has conceded that the President’s tweets are
official statements by the President.8 Judicial notice therefore is appropriate.
See Fed. R. Evid. 201(b)(2); see Martin v. Duffy, 858 F.3d 239, 253 n.4 (4th

8

J.A. 794, 1006 (statement from then White House Press Secretary Sean
Spicer that the President’s tweets should be “considered official statements
by the President of the United States”); see also Government’s Nov. 13,
2017 supplemental submission (Dkt. No. 29) in James Madison Project v.
Department of Justice, No. 1:17-cv-00144-APM (D.D.C.) (“[T]he
government is treating the President’s statements to which plaintiffs point –
whether by tweet, speech or interview – as official statements of the
President of the United States”) (Herzog Decl. Ex. H); Letter from Marc T.
Short, Assistant to the President for Legislative Affairs, to Rep. K. Michael
Conaway & Rep. Adam Schiff (June 23, 2017), available at
http://i2.cdn.turner.com/cnn/2017/images/06/23/white.house.letter.pdf
(referring to the President’s tweets as “President Trump’s June 22, 2017
statement”) (Herzog Decl. Ex. I).
4

Cir. 2017) (the Court “may properly take judicial notice” of government
policy). That is true regardless of whether the facts to be judicially noticed
arose following the district court’s decision. See, e.g., Romine v. Diversified
Collection Servs., Inc., 155 F.3d 1142, 1146-47 (9th Cir. 1998) (taking
judicial notice of an FTC letter that “was not published at the time of
briefing and argument before the district court”); In re Am. Biomaterials
Corp., 954 F.2d 919, 922 (3d Cir. 1992) (quoting Landy v. Fed. Deposit Ins.
Corp., 486 F.2d 139, 151 (3d Cir. 1973), cert. denied, 416 U.S. 960 (1974))
(noting that “an appellate court in a proper case” may “take judicial notice of
new developments not considered by the lower court”).
10.

Plaintiffs also respectfully request that this Court exercise its inherent

authority to supplement the record. Appellate courts have the equitable
authority to supplement the record. E.g., Acumed LLC v. Advanced Surgical
Servs., 561 F.3d 199, 226 (3d Cir. 2009); United States v. Kennedy, 225 F.3d
1187, 1192 (10th Cir. 2000); Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir.
1986); Freedman v. Mendelson, 197 F.R.D. 276, 279-80 (E.D. Va. 2000)
(stating that “federal appellate courts [may] consider matters beyond the
record on appeal as a matter of inherent discretion,” including “in the
interest of justice”). An appellate court may supplement the record where
new evidence informs the “appropriateness of injunctive relief,” In re
Application of Adan, 437 F.3d 381, 398 n.3 (3d Cir. 2006) (citing Goland v.
Cent. Intelligence Agency, 607 F.2d 339, 370 n.7 (D.C. Cir.1978)), and
where “remanding the case to the district court for consideration of the
5

additional material would be contrary to the interests of justice and the
efficient use of judicial resources,” Acumed LLC, 561 F.3d at 226.
11.

The

present

supplementation.

circumstances

are

precisely

those

that

merit

The President’s recent statements and those of his

spokesperson were not before the district court solely because they were
issued while the matter was on appeal before this Court. There is no need
for further fact-finding where, as here, the statements by the President and
his spokesperson cannot be disputed.

Remand to the district court is

therefore unnecessary and highly inefficient.

Nor could there be any

conceivable prejudice to the government, which, having issued these
statements, surely received contemporaneous notice of their contents.
12.

Plaintiffs additionally request that the Court supplement the record

with four news articles that Plaintiffs referenced in their Opening Brief,9
9

These include: Eric Hananoki, New DHS Senior Advisor Pushed “Mosque
Surveillance Program,” Claimed that Muslims “By-And-Large” Want to
Subjugate Non-Muslims, Media Matters (Mar. 14, 2017),
https://www.mediamatters.org/research/2017/03/14/new-dhs-senior-adviserpushed-mosque-surveillance-program-claimed-muslims-and-large-wantsubjugate/215634 (Herzog Decl. Ex. J); Noah Lanard, A Fake Jihadist Has
Landed a Top Job at Homeland Security, Mother Jones (Nov. 1, 2017),
http://www.motherjones.com/politics/2017/11/a-fake-jihadist-has-landed-atop-job-at-homeland-security/ (Herzog Decl. Ex. K); Jonathan Blitzer, How
Stephen Miller Single-Handedly Got the U.S. To Accept Fewer Refugees,
New Yorker (Oct. 13, 2017), https://www.newyorker.com/news/newsdesk/how-stephen-miller-single-handedly-got-the-us-to-accept-fewerrefugees (Herzog Decl. Ex. L); and Associated Press, U.S., Cuba Fail to
Reach Accord on Immigration (July 10, 1986), available at
http://articles.latimes.com/1986-07-10/news/mn-22586_1_radio-marti. Pfs.
Br. 6 nn.2-3, 32 & n.13, 49 n.21 (Herzog Decl. Ex. M).
6

along with the documents cited herein that provide context for the
President’s recent statements. These documents are set forth in Exhibits E–
M of the Herzog Declaration.
13.

While Plaintiffs submit that there is ample record evidence to affirm

the district court’s order, and that it would not typically be necessary to
formally add these articles to the record, the government has noted that they
are not in the record—albeit without contesting their accuracy.
14.

Plaintiffs

therefore

respectfully

request

that

the

record

be

supplemented to include these articles in the interest of having all relevant
materials in the record. One of the articles, dated October 13, 2017, was
published the day before Plaintiffs’ reply briefs were filed in the District
Court pursuant to an expedited briefing schedule. It was cited in the district
court, see International Refugee Assistance Project Reply Br. 2 n.4,
International Refugee Assistance Project v. Trump, No 8:17-cv-00361-TDC
(D. Md. Oct. 14, 2017), ECF No. 216, but was not formally added to the
record at that time.

A second article, dated November 1, 2017, was

published after the District Court issued its Opinion and Order on October
17, 2017, J.A. 993, 1084, and as such Plaintiffs did not have the opportunity
to provide it to the District Court. A third article, dated March 14, 2017,
concerned an individual whose role in overseeing implementation of the
Executive Orders did not come to light until November 1, 2017. The final
article, dated July 10, 1986, is an Associated Press story describing the
suspension of entry of Cuban nationals under President Reagan.
7

The

government has not contested the accuracy of the statements made in any of
these articles.
15.

Because all of these articles are probative of the questions at issue and

may be useful to the Court, the record should be supplemented to include
them.
Respectfully submitted,

Dated: December 4, 2017

/s/ Robert A. Atkins
Robert A. Atkins
Charles E. Davidow
Liza Velazquez
Andrew J. Ehrlich
Steven C. Herzog
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Lena F. Masri
Gadeir Abbas
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS
453 New Jersey Avenue SE
Washington, D.C. 20003
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Jethro Eisenstein
PROFETA & EISENSTEIN
45 Broadway, Suite 2200
New York, New York 10006
Tel.: [phone]
Fax: [phone]
[e-mail]

Faiza Patel
Michael Price
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
120 Broadway, Suite 1750
New York, NY 10271
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Plaintiffs-Appellees Zakzok, et al.
8

Omar C. Jadwat
Lee Gelernt
Hina Shamsi
Hugh Handeyside
Sarah L. Mehta
David Hausman
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Karen C. Tumlin
Nicholas Espíritu
Melissa S. Keaney
Esther Sung
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Boulevard,
Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin B. Cox
NATIONAL IMMIGRATION LAW
CENTER
P.O. Box 170208
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]

Cecillia D. Wang
Cody H. Wofsy
Spencer E. Amdur
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Kathryn Claire Meyer
Mariko Hirose
INTERNATIONAL REFUGEE
ASSISTANCE PROJECT
40 Rector Street, 9th Floor
New York, New York 10006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David Rocah
Deborah A. Jeon
Sonia Kumar
Nicholas Taichi Steiner
AMERICAN CIVIL LIBERTIES UNION

David Cole
Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street NW
Washington, DC 20005
Tel: [phone]
9

Fax: [phone]
FOUNDATION OF MARYLAND
[e-mail]
3600 Clipper Mill Road, Suite 350
[e-mail]
Baltimore, MD 21211
[e-mail]
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiffs-Appellees IRAP, et al.
Johnathan Smith
Sirine Shebaya
MUSLIM ADVOCATES
P.O. Box 66408
Washington, D.C. 20035
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Mark H. Lynch
Mark W. Mosier
Herbert L. Fenster
Jose E. Arvelo
John W. Sorrenti
Katherine E. Cahoy
Rebecca G. Van Tassell
Karun Tilak
COVINGTON & BURLING LLP
One City Center
850 10th Street, NW
Washington, D.C. 20001
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Richard B. Katskee
Eric Rothschild
Andrew L. Nellis^
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE
1310 L St. NW, Ste. 200
Washington, D.C. 2005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiffs-Appellees I.A.A.B., et al.

^Admitted only in New York; supervised by Richard B. Katskee, a member
of the D.C. Bar

10

CERTIFICATE OF COMPLIANCE
I hereby certify that this motion complies with the type-face
requirements of Federal Rule of Appellate Procedure 32(a)(5) and the typevolume limitations of Federal Rule of Appellate Procedure 27(d)(2)(A).
This motion contains 1,820 words, excluding the parts of the motion
excluded by Federal Rules of Appellate Procedure 27(d)(2) and 32(f).

/s/ Robert A. Atkins
Robert A. Atkins

CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of December, 2017, I filed the
foregoing motion by use of the Fourth Circuit’s CM/ECF system.
Participants in the case are registered CM/ECF users, and service will be
accomplished by the appellate CM/ECF system.
/s/ Robert A. Atkins
Robert A. Atkins