Intl. Refugee Assistance v. Donald J. Trump

Filing 16

MOTION by Potential Amici Curiae Texas, Alabama, Arkansas, Florida, Louisiana, Ohio, Oklahoma, South Carolina, and West Virginia in 17-2231, 17-2232, 17-2233, 17-2240 to file amicus curiae brief (FRAP 29(e)). [1000179533] [17-2231, 17-2232, 17-2233, 17-2240] RW [Entered: 10/24/2017 12:13 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, a Project of the Urban
Justice Center, Inc., on Behalf of Itself and Its Clients; HIAS, Inc., on
Behalf of Itself and Its Clients; John Does #1 & 3; Jane Doe #2; Middle
East Studies Ass’n of North America, Inc., on Behalf of Itself and Its
Members; Muhammed Meteab; Paul Harrison; Ibrahim Ahmed Mohomed;
Arab American Ass’n of New York, on Behalf of Itself and Its Clients,
Plaintiffs-Appellees,
and
Allan Hakky; Samaneh Takaloo,
Plaintiffs,
v.
Donald J. Trump, in His Official Capacity as President of the United
States; U.S. Dep’t of Homeland Security; U.S. Dep’t of State; Office of
the Director of National Intelligence, Elaine C. Duke, in Her Official
Capacity as Acting Secretary of Homeland Security; Rex Tillerson, in
His Official Capacity as Secretary of State; Daniel R. Coats, in His
Official Capacity as Director of National Intelligence,
Defendants-Appellants (cont’d)
On Appeal from the United States District Court for the District of Maryland
MOTION FOR LEAVE TO FILE BRIEF FOR THE STATES OF
TEXAS, ALABAMA, ARIZONA, ARKANSAS, FLORIDA,
LOUISIANA, OHIO, OKLAHOMA, SOUTH CAROLINA, AND
WEST VIRGINIA AMICI CURIAE IN SUPPORT OF A STAY
PENDING APPEAL
Ken Paxton
Attorney General of Texas

Scott A. Keller
Solicitor General

Jeffrey C. Mateer
First Assistant Attorney General

J. Campbell Barker
Deputy Solicitor General

Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: [phone]
Fax: [phone]
[e-mail]

Ari Cuenin
Assistant Solicitor General

No. 17-2232
Iranian Alliances Across Borders; Jane Doe #1; Jane Doe #2;
Jane Doe #3; Jane Doe #4; Jane Doe #5; Jane Doe #6,
Plaintiffs-Appellees,
v.
Donald J. Trump, in His Official Capacity as President of the United
States; Elaine C. Duke, in Her Official Capacity as Acting Secretary of
Homeland Security; Kevin K. McAleenan, in His Official Capacity as
Acting Commissioner of U.S. Customs and Border Protection; James
McCament, in His Official Capacity as Acting Director of U.S.
Citizenship and Immigration Services; Rex Tillerson;
Jefferson B. Sessions III, in His Official Capacity as Attorney General
of the United States,
Defendants-Appellants
On Appeal from the United States District Court for the District of Maryland
No. 17-2233
Eblal Zakzok; Sumaya Hamadmad; Fahed Muqbil; John Doe #1;
John Doe #2; John Doe #3,
Plaintiffs-Appellees,
v.
Donald J. Trump, in His Official Capacity as President of the United
States; U.S. Dep’t of Homeland Security; U.S. Dep’t of State; Elaine C.
Duke, in Her Official Capacity as Acting Secretary of Homeland
Security; Rex Tillerson, in His Official Capacity as Secretary of State,
Defendants-Appellants (cont’d)
On Appeal from the United States District Court for the District of Maryland

No. 17-2240
International Refugee Assistance Project, a Project of the Urban
Justice Center, Inc., on Behalf of Itself and Its Clients; HIAS, Inc., on
Behalf of Itself and Its Clients; John Does #1 & 3; Jane Doe #2; Middle
East Studies Ass’n of North America, Inc., on Behalf of Itself and Its
Members; Muhammed Meteab; Arab American Ass’n of New York, on
Behalf of Itself and Its Clients,
Plaintiffs-Appellants,
and
Paul Harrison; Ibrahim Ahmed Mohomed; Allan Hakky;
Samaneh Takaloo,
Plaintiffs,
v.
Donald J. Trump, in His Official Capacity as President of the United
States; U.S. Dep’t of Homeland Security; Dep’t of State; Office of the
Director of National Intelligence, Elaine C. Duke, in Her Official
Capacity as Acting Secretary of Homeland Security; Rex Tillerson, in
His Official Capacity as Secretary of State; Daniel R. Coats, in His
Official Capacity as Director of National Intelligence,
Defendants-Appellees.
On Appeal from the United States District Court for the District of Maryland

Motion for Leave to File Brief
Amici curiae the States of Texas, Alabama, Arizona, Arkansas, Florida, Louisiana, Ohio, Oklahoma, South Carolina, and West Virginia respectfully move for leave
to file a brief as amici curiae in support of the motion for a stay pending appeal. Appellants/cross-appellees consent to the proposed amicus brief, which accompanies
this motion and a Certificate of Compliance with Type-Volume Limit. The International Refugee Assistance Project appellees/cross-appellants take no position. The
Iranian Alliances Across Borders and Zakzok appellees also take no position.
1.

On September 24, 2017, the President issued a Proclamation—“Enhancing

Vetting Capabilities and Processes for Detecting Attempted Entry into the United
States by Terrorists or Other Public Safety Threats,” 82 Fed. Reg. 45,161 (Sept. 27,
2017)— after a global review by the Department of Homeland Security and the Department of State of countries’ information-sharing practices and risk factors and
recommendation that the President restrict entry of certain nationals of eight countries that have inadequate practices or otherwise present heightened risks. The Proclamation imposes country-specific restrictions that President decided would most
effectively “encourage cooperation” in information sharing and “protect the United
States until such time as improvements occur.” Id. at 45,164. On October 17, 2017,
the district court enjoined the Proclamation in part on the basis that plaintiffs were
likely to prevail on their statutory and Establishment Clause claims.

1

2. Federal Rule of Appellate Procedure 29 permits a State to file an amicus
brief without the parties’ consent or leave of court “during a court’s initial consideration of a case on the merits.” Fed. R. App. P. 29(a)(1), (2). That rule appears not
to govern here both because the case is before the Court in a stay posture.
3. Amici respectfully move for any necessary leave to file an amicus brief at
this stage, in support of the motion to stay pending appeal being considered by the
Court. The attached proposed brief includes material that is “desirable” and “relevant to the disposition of the case.” Id. 29(a)(3). The amicus brief provides an overview of the federal immigration laws against which plaintiffs’ statutory and constitutional claims should be evaluated; explains that the Proclamation reflects a policy
decision delegated to the Executive Branch expressly by Congress, and was issued
after multiple federal officials drew public attention to serious flaws in the preexisting vetting scheme for aliens residing abroad who wish to enter this country; and
draws the Court’s attention to authorities relevant to the extension of constitutional
rights that plaintiffs advocate here.
4. This is a case of national interest with important and far-reaching foreignaffairs and national-security implications. Every State has a substantial interest in the
health and welfare of their citizens, but the States and their elected officials must rely
on the federal Executive to determine when the entry of aliens should be suspended
for public-safety reasons under a regime crafted by the States’ elected representatives in Congress. See generally Arizona v. United States, 132 S. Ct. 2492, 2507 (2012).
Amici thus share a substantial interest in the federal government having the latitude
to make policy judgments reserved to it by statute, and inherent in this country’s

nature as a sovereign, regarding the terms and conditions for whether aliens may enter the country.
5. Amici have also endeavored to assist the Court in resolving the weighty issues in this case in as few words as possible. The attached brief would comply with
the type-volume limitation for an amicus brief on the merits because it uses fewer
than half of the 13,000 words that are allotted for an appellants’ opening brief during
the Court’s initial consideration of the case on the merits. See Fed. R. App. P.
29(a)(1), (5), 32(a)(7)(B)(i).

Conclusion
Amici respectfully request leave to file the attached brief as amici curiae supporting a stay pending appeal.
Respectfully submitted.
Ken Paxton
Attorney General of Texas
Jeffrey C. Mateer
First Assistant Attorney General
s/ Scott A. Keller
Scott A. Keller
Solicitor General
J. Campbell Barker
Deputy Solicitor General
Ari Cuenin
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: [phone]
Fax: [phone]
[e-mail]

Certificate of Conference
This motion has been conferenced with counsel for the parties, and appellants/cross-appellees consent to the filing of the proposed amicus brief for which
leave to file is requested herein. The International Refugee Assistance Project appellees/cross-appellants take no position. The Iranian Alliances Across Borders and
Zakzok appellees also take no position.
s/ Scott A. Keller
Scott A. Keller

Certificate of Service
I hereby certify that on September 24, 2017, I electronically filed the foregoing
document with the Clerk of the Court for the United States Court of Appeals for the
Fourth Circuit by using the appellate CM/ECF system. Participants in the case are
registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.
s/ Scott A. Keller
Scott A. Keller