Intl. Refugee Assistance v. Donald J. Trump
Filing
64
AMICUS CURIAE BRIEF by Potential Amicus Curiae Texas in 17-2231Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and West Virginia in electronic and paper format. Method of Filing Paper Copies: mail. [1000186503] [17-2231, 17-2232, 17-2233, 17-2240] Scott Keller [Entered: 11/03/2017 12:45 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
BRIEF FOR THE STATES OF TEXAS, ALABAMA, ARIZONA,
ARKANSAS, FLORIDA, KANSAS, LOUISIANA, MISSOURI,
OHIO, OKLAHOMA, SOUTH CAROLINA, AND
WEST VIRGINIA AMICI CURIAE IN SUPPORT OF
DEFENDANTS-APPELLANTS
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.: (512) 936-1700
Fax: (512) 474-2697
scott.keller@oag.texas.gov
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
Table of Contents
Page(s)
Interest of amici curiae ............................................................................................. 1
Summary of the argument ........................................................................................ 2
Argument ................................................................................................................. 5
I. Plaintiffs cannot overcome the exacting standard that applies to
discriminatory-purpose challenges to facially neutral government
actions. ....................................................................................................... 5
A. An exacting standard insulates government action from being
deemed a discriminatory pretext absent clear proof
overcoming the presumptions of constitutionality and good
faith. ..................................................................................................... 6
B. There is nothing close to clear proof that the Proclamation
here, which classifies aliens by nationality and reflects
national-security concerns, is a pretext for a religious test. .................. 9
II. The Proclamation complies with the INA, so it also receives “the
strongest of presumptions” of validity because it is within
Youngstown’s first category as executive action pursuant to power
delegated expressly by Congress................................................................ 11
III. The constitutional provisions invoked by plaintiffs do not extend
extraterritorially, nonresident aliens abroad possess no
constitutional rights regarding entry into this country, and the
Proclamation provides all process that could possibly be due. ...................19
Conclusion ............................................................................................................. 26
Certificate of service .............................................................................................. 28
Certificate of compliance ....................................................................................... 29
i
Table of Authorities
Page(s)
Cases
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986) ..........................................................................16
Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40 (1999) ............................................................................................ 22
Arizona v. United States,
567 U.S. 387 (2012) ........................................................................................ 1, 17
Azizi v. Thornburgh,
908 F.2d 1130 (2d Cir. 1990) ............................................................................. 22
Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................6, 10, 20
City of Columbia v. Omni Outdoor Advert., Inc.,
499 U.S. 365 (1991) ............................................................................................. 7
Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363 (2000) ........................................................................................... 17
Dames & Moore v. Regan,
453 U.S. 654 (1981) .......................................................................................11, 17
De Avilia v. Civiletti,
643 F.2d 471 (7th Cir. 1981) .............................................................................. 22
Demore v. Kim,
538 U.S. 510 (2003) .......................................................................................... 23
Flemming v. Nestor,
363 U.S. 603 (1960) ............................................................................................. 8
Fletcher v. Peck,
6 Cranch 87 (1810) .......................................................................................... 7, 8
Haitian Refugee Ctr. v. Gracey,
809 F.2d 794 (D.C. Cir. 1987) ...................................................................... 13, 20
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .......................................................................................... 10
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ............................................................................................... 14
ii
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir. 2017) (en banc) ............................................................... 15
Johnson v. Eisentrager,
339 U.S. 763 (1950) ........................................................................................... 20
Kerry v. Din,
135 S. Ct. 2128 (2015) .................................................................................. 18, 25
Kleindienst v. Mandel,
408 U.S. 753 (1972) ..................................................................................... passim
Knoetze v. U.S. Dep’t of State,
634 F.2d 207 (5th Cir. 1981).............................................................................. 23
Lamont v. Woods,
948 F.2d 825 (2d Cir. 1991)............................................................................... 21
Landon v. Plasencia,
459 U.S. 21 (1982) .................................................................................. 19, 23, 24
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau
of Consular Affairs,
104 F.3d 1349 (D.C. Cir. 1997).......................................................................... 22
Louhghalam v. Trump,
230 F. Supp. 3d 26 (D. Mass. 2017) .................................................................. 22
Mathews v. Diaz,
426 U.S. (1976) ............................................................................................. 10-11
McCleskey v. Kemp,
481 U.S. 279 (1987) ............................................................................................. 7
McCreary Cty. v. ACLU,
545 U.S. 844 (2005) ........................................................................................ 2, 8
Miller v. Johnson,
515 U.S. 900 (1995) ............................................................................................. 6
Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979)........................................................................................ 8, 11
Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999) ............................................................................. 6, 10, 13, 14
Republican Party of Minn. v. White,
536 U.S. 765 (2002) ........................................................................................... 11
iii
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) ............................................................................. 3, 13, 15, 19
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) ........................................................................................... 12
Smith v. Doe,
538 U.S. 84 (2003) .............................................................................................. 8
Sunday Lake Iron Co. v. Wakefield Twp.,
247 U.S. 350 (1918) ............................................................................................. 6
Swarthout v. Cooke,
562 U.S. 216 (2011) (per curiam) ...................................................................... 22
Tenney v. Brandhove,
341 U.S. 367 (1951) .............................................................................................. 8
Texas v. United States,
809 F.3d 134 (5th Cir. 2015)............................................................................... 17
Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080 (2017) (per curiam) ................................................................ 4, 7
U.S. Dep’t of Labor v. Triplett,
494 U.S. 715 (1990) ......................................................................................... 5, 6
United States v. Chem. Found., Inc.,
272 U.S. 1 (1926) ................................................................................................. 6
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) .......................................................................................... 20
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ........................................................................................... 18
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ......................................................................................... 7, 8
Washington v. Davis,
426 U.S. 229 (1976) ............................................................................................ 8
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) (per curiam) ....................................... 22, 23, 24, 25
858 F.3d 1168 (9th Cir. 2017) ......................................................................... 7, 11
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ........................................................................................... 20
iv
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ............................................................................. 3, 11, 12, 17
Zadvydas v. Davis,
533 U.S. 678 (2001) ........................................................................................... 20
Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ................................................................................... 17-18
Constitutional Provisions, Statutes and Rules
U.S. Const. amend. I ..................................................................................... 3, 20, 21
U.S. Const. amend. V ...................................................................................... passim
Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. ............................... passim
§ 1101(a)(4) ........................................................................................................ 15
§ 1101(a)(13)(A) ................................................................................................. 15
§ 1101(a)(15)-(16) .............................................................................................. 14
§ 1101(a)(42) ..................................................................................................... 24
§ 1151(a)-(b) ...................................................................................................... 14
§ 1152(a)(1)(A)............................................................................................. 14, 15
§ 1157(a) ............................................................................................................ 24
§ 1157(a)(3) ....................................................................................................... 21
§ 1157 note ........................................................................................................ 21
§ 1158 ................................................................................................................ 24
§ 1158(a)............................................................................................................ 24
§ 1158(a)(1) ....................................................................................................... 24
§ 1158(c)(1) ....................................................................................................... 24
§ 1181 ................................................................................................................. 15
§ 1181(a) ............................................................................................................ 14
§ 1181(c) ............................................................................................................ 24
§ 1182(a) ...................................................................................................... 15, 16
§ 1182(f) ...................................................................................................... passim
§ 1184 ................................................................................................................. 15
§ 1185(a)(1) ....................................................................................................... 12
§ 1187(a)(12) ....................................................................................................... 9
§ 1187(a)(12)(A)(i)(III) ....................................................................................... 9
§ 1201(h) ............................................................................................................ 15
§ 1201(h)-(i) ...................................................................................................... 23
§ 1201(i) ............................................................................................ 12, 13, 15, 24
§ 1231 note ........................................................................................................ 25
v
50 U.S.C. § 1541 note ............................................................................................. 10
22 C.F.R.
§ 41.122 .............................................................................................................. 15
§ 42.82 ............................................................................................................... 15
Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (2001)........................................................... 10
Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2016,
Pub. L. No. 114-113, div. K, 129 Stat. 2705 (2015) ............................................ 21
Intelligence Reform and Terrorism Prevention Act of 2004,
Pub. L. No. 108-458, 118 Stat. 3638 .................................................................. 24
Miscellaneous
Executive Order 13,769,
82 Fed. Reg. 8977 (Feb. 1, 2017) ....................................................................... 23
Presidential Proclamation No. 5377,
50 Fed. Reg. 41,329 (Oct. 10, 1985) ...................................................................16
Presidential Proclamation No. 5517,
51 Fed. Reg. 30,470 (Aug. 26, 1986) .................................................................. 15
Presidential Proclamation No. 9645,
82 Fed. Reg. 45,161 (Sept. 27, 2017) ........................................................... passim
vi
Interest of Amici Curiae
Amici curiae are the States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and West Virginia.1 The
States have a significant interest in protecting their residents’ safety. But the States
and their elected officials must generally rely on the federal Executive Branch to restrict or set the terms of aliens’ entry into the States for public-safety and nationalsecurity reasons, pursuant to the laws of Congress. See Arizona v. United States, 567
U.S. 387, 409-10 (2012). And the Immigration and Nationality Act (INA) gives the
Executive significant authority to suspend aliens’ entry into the country. Amici
therefore have a substantial interest in the alleged existence of restrictions on the
President’s ability to suspend the entry of aliens as he determines is in the national
interest.
1
The amici States file this brief as of right under Federal Rule of Appellate Procedure 29(a)(2).
Summary of the Argument
The court below issued yet another remarkable injunction of the President’s
Proclamation suspending the entry of specified classes of nonresident aliens. The
injunction denies the federal government—under a statutory regime crafted by the
people’s representatives in Congress—the latitude necessary to make national-security, foreign-affairs, and immigration-policy judgments inherent in this country’s nature as a sovereign. The injunction is contrary to law because it issued despite multiple longstanding doctrines limiting the availability of judicial remedies for disagreement with policy decisions like the Proclamation here.
First, the injunction cannot be justified by a discriminatory-purpose challenge to
the Proclamation based on purported religious animus. The Supreme Court accords
facially neutral government actions a presumption of validity and good faith, so those
actions can be invalidated under a discriminatory-purpose analysis only if there is
clear proof of pretext to overcome these presumptions. This longstanding, exacting
standard for judicial scrutiny of government motives has been recognized in multiple
types of constitutional challenges. See infra Part I.A. This limit respects institutional
roles by precluding “judicial psychoanalysis of a drafter’s heart of hearts.” McCreary
Cty. v. ACLU, 545 U.S. 844, 862 (2005). And no grounds here satisfy the exacting
standards for showing that the Proclamation is pretext masking a religious classification. The Proclamation classifies aliens according to nationality based on concerns
about the government’s ability to adequately vet and manage nationals of eight covered countries. That result is the culmination of months of review and input from
2
numerous federal officials. Not only that, but several countries covered by the Proclamation were previously identified by Congress and the Obama Administration, under the visa-waiver program, as national-security “countries of concern.” The Proclamation is therefore valid, as it provides a “facially legitimate and bona fide reason”
for exercising the President’s 8 U.S.C. § 1182(f) national-security and foreign-affairs
powers to restrict entry. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).
Second, the President had statutory authority to issue the Proclamation. The
Proclamation comports with Congress’s scheme granting the President sweeping
power, under 8 U.S.C. § 1182(f), to restrict alien entry into the United States. Thus,
in addition to the presumptions of constitutionality and good faith, the Proclamation
must also be further accorded “the strongest of presumptions and the widest latitude
of judicial interpretation,” because it is in Youngstown’s first zone of executive action
pursuant to congressionally delegated power. Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 637 (1952) (Jackson, J., concurring).
Third, the injunction cannot be justified under a procedural-due-process theory
turning on whether a nonresident alien abroad has a sufficient connection to the
United States. The Constitution does not apply extraterritorially to nonresident aliens abroad seeking entry. So neither the Fifth Amendment nor the Establishment
Clause extend to the aliens covered by the Proclamation. Indeed, this Court has specifically recognized that there is no “judicial remedy” to override the Executive’s
use of its delegated 8 U.S.C. § 1182(f) power to deny classes of nonresident aliens
entry into this country. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993).
3
But even assuming the Constitution applies to nonresident aliens abroad seeking entry, the Proclamation fully complies with any possible due-process requirements.
The Proclamation publicly sets forth facially valid, bona fide national-security
grounds for restricting entry to classes of nonresident aliens abroad. At a minimum,
constitutional rights do not extend extraterritorially to “foreign nationals abroad
who have no connection to the United States at all.” Trump v. Int’l Refugee Assistance
Project, 137 S. Ct. 2080, 2088 (2017) (per curiam) (IRAP).
4
Argument
I. Plaintiffs Cannot Overcome the Exacting Standard that Applies to
Discriminatory-Purpose Challenges to Facially Neutral Government Actions.
As the Supreme Court has recognized for years and in many different contexts,
a discriminatory-purpose challenge to facially neutral government action faces an exacting standard. The central principle in this well-established body of case law is that
a facially neutral government action can be invalidated as pretext only upon a clear
showing. See infra pp. 7-8. This high standard for overriding government action by
discerning a discriminatory purpose respects the “heavy presumption of constitutionality to which a carefully considered decision of a coequal and representative
branch of our Government is entitled.” U.S. Dep’t of Labor v. Triplett, 494 U.S. 715,
721 (1990) (citation and quotation marks omitted).
That heavy presumption cannot be overcome by plaintiffs’ arguments here, especially given the Proclamation’s detailed national-security findings, the resonance
of those findings in determinations of numerous federal officials, and the judicial deference owed to executive decisions in this context. See Presidential Proclamation No.
9645 § 1(c)-(j), 82 Fed. Reg. 45,161, 45,162-65 (Sept. 24, 2017). Arguments deeming
the Proclamation pretext for a religious test discount those weighty considerations,
and undermine the sound reasons for the exacting standard required to invalidate
facially neutral government action based on an alleged discriminatory purpose.
5
A. An exacting standard insulates government action from being
deemed a discriminatory pretext absent clear proof overcoming
the presumptions of constitutionality and good faith.
A discriminatory-purpose challenge to facially neutral government action faces
an exacting standard under Supreme Court precedent: it requires clear proof of pretext.
1.
This exacting standard for discriminatory-purpose challenges is just one ap-
plication of the Supreme Court’s general recognition that government action is presumed valid, e.g., Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 353 (1918);
that government actors are presumed to act in good faith, Miller v. Johnson, 515 U.S.
900, 916 (1995); and that a “presumption of regularity” attaches to official government action, United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). These doctrines create a “heavy presumption of constitutionality.” Triplett, 494 U.S. at 721.
And this presumption of constitutionality applies with particular force to the foreign-affairs and national-security determinations at issue here. See Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 491-92 (1999) (AADC). After all,
“[u]nlike the President and some designated Members of Congress, neither the
Members of th[e Supreme] Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.”
Boumediene v. Bush, 553 U.S. 723, 797 (2008). Indeed, “the Government’s interest
in enforcing” the Proclamation’s travel restrictions “and the Executive’s authority
to do so” extend from the government’s “interest in preserving national security[,
which] is an urgent objective of the highest order,” particularly “when there is no
6
tie between the foreign national and the United States.” IRAP, 137 S. Ct. at 2088
(quotation marks omitted).
2. Consequently, the Supreme Court “has recognized, ever since Fletcher v.
Peck, [6 Cranch 87, 130-31 (1810),] that judicial inquiries into legislative or executive
motivation represent a substantial intrusion into the workings of other branches of
government.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268
n.18 (1977); see also Washington v. Trump, 858 F.3d 1168, 1174 (9th Cir. 2017)
(Kozinski, J., dissenting from denial of rehearing en banc). The Supreme Court has
therefore permitted a discriminatory-purpose analysis of government action in only
a “very limited and well-defined class of cases.” City of Columbia v. Omni Outdoor
Advert., Inc., 499 U.S. 365, 377 n.6 (1991).
Even when it has permitted a discriminatory-purpose analysis of government action, this Court has concomitantly stated that any such analysis proceeds under an
exacting standard. As Chief Justice Marshall explained for the Supreme Court over
two centuries ago in Fletcher, government action can be declared unconstitutional
only upon a “clear and strong” showing. 6 Cranch at 128.
The Supreme Court has thus repeatedly explained, in various contexts, that
courts can override facially neutral government actions as pretext only upon clear
proof. For example:
When there are “legitimate reasons” for government action, courts “will
not infer a discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 29899 (1987) (rejecting equal-protection claim).
7
A law’s impact does not permit “the inference that the statute is but a pretext” when the classification drawn by a law “has always been neutral” as
to a protected status, and the law is “not a law that can plausibly be explained only as a [suspect class]-based classification.” Pers. Adm’r of Mass.
v. Feeney, 442 U.S. 256, 272, 275 (1979) (rejecting equal-protection claim);
see Arlington Heights, 429 U.S. at 269-71; Washington v. Davis, 426 U.S. 229,
245-48 (1976).
Only the “clearest proof” will suffice to override the stated intent of government action, to which courts “defer.” Smith v. Doe, 538 U.S. 84, 92
(2003) (rejecting ex-post-facto claim); see Flemming v. Nestor, 363 U.S. 603,
617 (1960) (citing Fletcher, 6 Cranch at 128).
“[Unless] an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of
hearts,” judicial inquiry into purpose may make little “practical sense.”
McCreary Cty., 545 U.S. at 862.
This exacting standard for a discriminatory-purpose challenge to facially neutral
government action exists for good reason. It ensures that a purpose inquiry will remain judicial in nature, safeguarding against a devolution into policy-based reasoning
that elevates views about a perceived lack of policy merit into findings of illicit purpose. Even when an official adopts a different policy after criticism of an earlier proposal, critics can be quick to perceive an illicit purpose when they disagree with the
final policy issued. See Tenney v. Brandhove, 341 U.S. 367, 378 (1951) (“In times of
political passion, dishonest or vindictive motives are readily attributed . . . and as
readily believed.”). The clearest-proof standard helps keep the Judiciary above that
political fray.
8
B. There is nothing close to clear proof that the Proclamation here,
which classifies aliens by nationality and reflects nationalsecurity concerns, is a pretext for a religious test.
The Proclamation’s travel restrictions classify aliens by nationality—not religion. The Proclamation’s suspension of entry by certain nationals from eight countries neither mentions any religion nor depends on whether affected aliens are Muslim. See Proclamation No. 9645 §§ 2, 3.
The Proclamation therefore is emphatically not a “Muslim ban.” The Proclamation includes two non-majority-Muslim countries (North Korea and Venezuela),
and excludes two majority-Muslim countries (Iraq and Sudan) that were covered by
the President’s previous entry suspensions. Data from the Pew-Templeton Global
Religious Futures Project indicates that the countries covered by the Proclamation
contain fewer than 9% of the world’s Muslims. Chad, Iran, Libya, North Korea,
Syria, Venezuela, Yemen, and Somalia are identified as “Countries of Identified
Concern,” from which entry is suspended or limited as “detrimental to the interests
of the United States.” Proclamation pmbl., § 2. Six of these countries were already
included in the list of seven countries under 8 U.S.C. § 1187(a)(12) was created by
Congress and the Obama Administration, in administering the visa-waiver program,
upon finding each to be a national-security “country or area of concern.” 8 U.S.C.
§ 1187(a)(12)(A)(i)(III).
The manifestly legitimate rationale for suspending entry for certain nationals
(see Proclamation §§ 1-2) includes “each country’s capacity, ability, and willingness
to cooperate with [U.S.] identity-management and information-sharing policies and
9
each country’s risk factors,” and “foreign policy, national security, and counterterrorism goals.” Proclamation § 1(h)(i). The proclamation reflects the “country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United
States until such time as improvements occur.” Id.
Moreover, before the current Administration took office, numerous federal officials—including the FBI Director, the Director of National Intelligence, and the
Assistant Director of the FBI’s Counterterrorism Division—expressed concerns
about the country’s current ability to vet alien entry. According to the House Homeland Security Committee, ISIS and other terrorists “are determined” to abuse refugee programs, and “groups like ISIS may seek to exploit the current refugee flows.”
The national-security interests implicated by the ongoing War on Terror against radical Islamic terrorists have been recognized since the 2001 Authorization for Use of
Military Force, Pub. L. No. 107-40, 115 Stat. 224 (codified at 50 U.S.C. § 1541 note).
Given this national-security grounding, a challenge to the Proclamation as a pretext for religious discrimination must fail. Ample reason exists for courts to leave
undisturbed the delicate policy judgments inherent in the Proclamation. These decisions account for sensitive border-security factors indicating a heightened nationalsecurity risk that courts are not well situated to evaluate. See Boumediene, 553 U.S. at
797; AADC, 525 U.S. at 491. When it comes to deciding the best way to use a sovereign’s power over its borders to manage risk, courts have long recognized that the
political branches are uniquely well situated. E.g., Mathews v. Diaz, 426 U.S. 67, 81
(1976); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 591 (1952).
10
Comments the President made during his campaign for office cannot overcome
the combination of (1) the Proclamation’s detailed explanation of its national-security basis, (2) the legitimate basis for that reasoning in conclusions of numerous federal officials, see supra p. 10, and (3) the exacting standard for deeming facially neutral
government action pretext for a discriminatory purpose, see supra Part I.A. Furthermore, the Supreme Court has recognized the limited significance of campaign statements made before candidates assume the responsibilities of office. See Republican
Party of Minn. v. White, 536 U.S. 765, 780 (2002); see also Washington, 858 F.3d at
1172-74 (Kozinski, J., dissenting from denial of rehearing en banc). And comments
made by nongovernment officials are irrelevant for determining whether the Executive Branch took action as a pretext for a prohibited, discriminatory purpose. See
Feeney, 442 U.S. at 279.
II. The Proclamation Complies with the INA, so It Also Receives “the
Strongest of Presumptions” of Validity Because It Is Within Youngstown’s First Category as Executive Action Pursuant to Power Delegated Expressly by Congress.
The Proclamation also complies with Congress’s statutory delegation of Executive power, so no purported INA violation would justify the injunction. In fact, the
President’s action here is accorded “the strongest of presumptions and the widest
latitude of judicial interpretation.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring), quoted in Dames & Moore v. Regan, 453 U.S. 654, 674 (1981). That is because
the Proclamation is within Youngstown’s first zone of executive action: Congress expressly delegated to the President the authority he exercised here. The burden of
11
persuasion for plaintiffs’ constitutional challenges will therefore “rest heavily upon”
plaintiffs, as the parties challenging the President’s Youngstown-zone-one action. Id.
A. The Proclamation suspends the entry into the United States of several classes of aliens comprising certain nationals of eight listed countries, subject to certain
exceptions. Proclamation §§ 2, 3, 6. This Proclamation exercises authority that Congress expressly delegated.
1.
“Courts have long recognized the power to expel or exclude aliens as a fun-
damental sovereign attribute exercised by the Government’s political departments
largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 210 (1953). Congress too has recognized this sovereign power to exclude
aliens, giving the President broad discretion to suspend the entry of any class of aliens:
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) (emphases added). It is unlawful for an alien to enter the country
in violation of “such limitations and exceptions as the President may prescribe.” Id.
§ 1185(a)(1).
In addition to the President’s broad § 1182(f) power to suspend the entry of aliens, Congress also provided that the Executive “may at any time, in [its] discretion,” revoke a visa. Id. § 1201(i). Such a discretionary visa revocation is judicially
12
unreviewable except in one narrow circumstance: in a removal proceeding (as opposed to an entry denial), if the “revocation provides the sole ground for removal.”
Id.
2. Any challenge to congressional authorization for the Proclamation’s nationality-based suspension of entry under § 1182(f) founders on the Supreme Court’s
decision in Sale, 509 U.S. at 187-88. Sale held—in terms equally applicable here—
that no “judicial remedy” exists to override the Executive’s use of its § 1182(f)
power to deny entry to specified classes of nonresident aliens. Id. at 188 (quoting
Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 841 (D.C. Cir. 1987) (Edwards, J., concurring in part and dissenting in part)).
Sale is fatal to any claim that the Proclamation here is unauthorized by the INA.
Sale held it “perfectly clear that 8 U.S.C. § 1182(f) . . . grants the President ample
power to establish a naval blockade that would simply deny illegal Haitian migrants
the ability to disembark on our shores.” Id. at 187. The Supreme Court rejected the
argument that a later-enacted statutory provision limits the President’s power under
§ 1182(f) to suspend aliens’ entry into the United States, reasoning that it “would
have been extraordinary for Congress to make such an important change in the law
without any mention of that possible effect.” Id. at 176.
Likewise here. The Proclamation cannot be enjoined on the basis that there is
no sufficient finding that the entry of the excluded classes would be detrimental to
the interests of the United States. The President need not even disclose his “reasons
for deeming nationals of a particular country a special threat,” AADC, 525 U.S. at
491, let alone to a court’s satisfaction. Even when the President does disclose his
13
reasons for deeming certain nationals to present a national-security risk, courts are
“ill equipped to determine their authenticity and utterly unable to assess their adequacy.” Id.
In all events, the Proclamation provides extensive findings supporting the need
for a suspension of entry for several failed states, governments that are state sponsors
of terrorism, or governments otherwise unwilling or unable to respond to adequate
vetting or other terrorism-related concerns. Proclamation §§ 1(g)-(j), 2(a)-(h).
“[W]hen it comes to collecting evidence and drawing factual inferences” regarding
determinations such as these, “the lack of competence on the part of the courts is
marked, and respect for the Government’s conclusions is appropriate.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 34 (2010).
3. Nor is Congress’s broad delegation of authority to suspend the entry of classes of aliens undermined by 8 U.S.C. § 1152(a)(1)(A), which makes no mention of
§ 1182(f). Section 1152(a)(1)(A) does not address the entry of aliens into the country
at all. Instead, it is part of a set of restrictions on the issuance of immigrant visas—
that is, permission for aliens to seek admission for permanent residence. See 8 U.S.C.
§§ 1101(a)(15)-(16), 1151(a)-(b), 1181(a). Added in the Immigration and Nationality
Act of 1965, which abolished an earlier nationality-based quota system for allocating
immigrant visas, § 1152(a)(1)(A) provides:
Except as specifically provided [elsewhere in the INA], 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.
14
Section 1152(a)(1)(A) does not conflict with § 1182(f) or impliedly restrict nationality-based denials of entry under § 1182(f). See Sale, 509 U.S. at 176. An alien’s
entry into this country is a different and much more consequential event than the
preliminary step of receiving a visa, which merely entitles the alien to apply for admission into the country. See 8 U.S.C. §§ 1101(a)(4), 1181, 1182(a), 1184. Visa possession does not control or guarantee entry; the INA provides several ways in which
visa-holding aliens can be denied entry. E.g., id. §§ 1101(a)(13)(A), 1182(a), (f),
1201(h), (i); 22 C.F.R. §§ 41.122, 42.82. One of them is the President’s express authority under § 1182(f) to suspend the entry of classes of aliens.
This design of the INA has been repeatedly recognized in past practice. For example, over 30 years ago, the President suspended the entry of Cuban nationals as
immigrants, subject to certain exceptions. Presidential Proclamation No. 5517, 51
Fed. Reg. 30,470 (Aug. 26, 1986); see also Int’l Refugee Assistance Project v. Trump,
857 F.3d 554, 648 & n.2 (4th Cir. 2017) (en banc) (Niemeyer, J., dissenting) (citing
additional examples), vacated as moot, __ S. Ct. __, 2017 WL 4518553 (Oct. 10,
2017). Plaintiffs point to no instance in which the government has read
§ 1152(a)(1)(A)’s visa-allocation provisions as prohibiting nationality-based suspensions of entry under § 1182(f). See, e.g., U.S.Br.35-38.
Finally, § 1152(a)(1)(A) applies only to immigrant visas, and does not cover
other prospective entrants, such as those seeking nonimmigrant visas. So, even on
plaintiffs’ view, this section cannot possibly establish that § 2 of the Proclamation is
statutorily unauthorized as applied to aliens seeking entry as nonimmigrants.
15
4. The President’s § 1182(f) authority to suspend aliens’ entry is not limited
by 8 U.S.C. § 1182(a), which also makes no mention of § 1182(f). In § 1182(a), Congress enumerated no fewer than seventy grounds that make an alien automatically
inadmissible to this country, unless an exception applies. Congress did not provide
that these are the only grounds on which the Executive can deny aliens entry. Instead, Congress in § 1182(f) separately enabled the President to impose additional
entry restrictions.
As the D.C. Circuit correctly recognized in Abourezk v. Reagan, 785 F.2d 1043
(D.C. Cir. 1986), § 1182(f) permits the Executive to deny aliens entry even if the
aliens are not within one of the enumerated § 1182(a) categories that automatically
make aliens inadmissible: “The President’s sweeping proclamation power [in
§ 1182(f)] thus 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).” Id.
at 1049 n.2. The Abourezk court even noted an example of this understanding in a
nationality-based § 1182(f) proclamation issued by President Reagan, which suspended entry for “officers or employees of the Cuban government or the Cuban
Communist Party.” Id. (citing Presidential Proclamation No. 5377, 50 Fed. Reg.
41,329 (Oct. 10, 1985)).2
2
Nor are the Proclamation’s travel restrictions contrary to other INA provisions
that plaintiffs cite. For example, the visa waiver program does not contradict the
Proclamation (P.I.Mot.15 (Dkt.No.205)) because it merely sets minimum standards
for visaless entry of aliens. U.S.Resp.29-30 (Dkt.No.212). The Proclamation’s restrictions similarly do not contradict Congress’s visa-processing scheme for similar
reasons. Id.
16
B. Because the Proclamation is an exercise of power delegated by Congress in
the INA, it is executive action in the first Youngstown zone. The Proclamation is
therefore also “supported by the strongest of presumptions and the widest latitude
of judicial interpretation.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring),
quoted in Dames & Moore, 453 U.S. at 674. Overcoming this strongest presumption
for any claim challenging the Proclamation is a burden that rests “heavily” on plaintiffs. Id.
Plaintiffs’ significant burden is well-founded here, not only because of the explicit congressional grant of authority to deny entry, 8 U.S.C. § 1182(f), but also because of the INA’s complementary approach to allowing entry. Specifically, Congress enacted “extensive and complex” provisions detailing how over forty different
classes of nonimmigrants, refugees, and other aliens can attain lawful presence in the
country. Arizona, 567 U.S. at 395; see Texas v. United States, 809 F.3d 134, 179 (5th
Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam). But
while Congress imposed these detailed criteria to significantly restrict the Executive’s ability to unilaterally allow aliens to be lawfully present in the country, Congress simultaneously provided the Executive broad authority to exclude aliens from
the country, under § 1182(f).
The President’s authority in this context therefore “includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at
635 (Jackson, J., concurring), quoted in Crosby v. Nat’l Foreign Trade Council, 530
U.S. 363, 375 (2000), and Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-
17
84 (2015). The injunction here is thus remarkable for interfering with a decision authorized by two branches of government in a particularly sensitive area. The admission of aliens into this country is a federal prerogative “inherent in sovereignty” that
must “be exercised exclusively by the political branches of government.” Mandel,
408 U.S. at 765 (quotation marks omitted); accord United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950).
Plaintiffs’ claim that the Proclamation is pretext for a religious classification thus
fails for this additional reason that the Proclamation is within Youngstown’s first
zone. And the Proclamation is already accorded the heavy presumption that facially
neutral government action is valid and taken in good faith. See supra Part I.A.
Especially with those presumptions in mind, the Executive provided a “facially
legitimate and bona fide reason” for exercising 8 U.S.C. § 1182(f) national-security
and foreign-affairs powers to restrict entry. Mandel, 408 U.S. at 770; see also Kerry v.
Din, 135 S. Ct. 2128, 2140-41 (2015) (Kennedy, J., concurring in the judgment) (federal government official informing alien of visa denial based expressly on statutory
provision is a “facially legitimate and bona fide” reason under Mandel). Courts
therefore must “neither look behind the exercise of that discretion, nor test it by
balancing its justification against” plaintiffs’ asserted constitutional rights. Mandel,
408 U.S. at 770.
18
III. The Constitutional Provisions Invoked by Plaintiffs Do Not Extend
Extraterritorially, Nonresident Aliens Abroad Possess No Constitutional Rights Regarding Entry into this Country, and the Proclamation Provides All Process that Could Possibly Be Due.
Finally, the Proclamation cannot be enjoined on a procedural-due-process theory. Any such theory, turning on whether a nonresident alien abroad has a sufficient
connection to the United States, cannot prevail. That is because the constitutional
provisions on which plaintiffs rely do not apply extraterritorially. And even if they
do, the Proclamation provides all process that is possibly due by giving facially neutral, bona fide national-security grounds for its restrictions.
A. The constitutional claims here are fundamentally untenable because the
constitutional provisions that plaintiffs invoke are inapplicable to the nonresident aliens abroad covered by the Proclamation.
1.
Nonresident aliens outside territory under clear United States control pos-
sess no constitutional rights regarding the terms on which they may enter the country: It is “clear” that “an unadmitted and nonresident alien” “ha[s] no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408
U.S. at 762. The “power to admit or exclude aliens is a sovereign prerogative,” and
aliens seeking admission to the United States request a “privilege.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).
Consequently, the Fifth Amendment’s Due Process Clause provides no “judicial remedy” to override the President’s 8 U.S.C. § 1182(f) power to deny classes of
nonresident aliens entry. Sale, 509 U.S. at 188; see id. (“agree[ing] with the conclu-
19
sion expressed in Judge Edwards’ concurring opinion” regarding statutory and constitutional challenges in Gracey, 809 F.2d at 841: “‘there is no solution to be found
in a judicial remedy’” overriding the Executive’s exercise of § 1182(f) authority (emphasis added)).
The Supreme Court has long “rejected the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the United States.” United
States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing Johnson v. Eisentrager,
339 U.S. 763, 784 (1950)). Rather, the Due Process Clause applies only “within the
territorial jurisdiction.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
The Constitution does not regulate immigration policy regarding foreign nationals who are neither resident nor present in United States territory. The Court has
therefore recognized a key distinction between aliens inside versus outside the
United States, according the former certain constitutional rights while not extending
those rights to the latter. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001); cf.
Boumediene, 553 U.S. at 754 (involving (1) lengthy detention, rather than entry denial, at (2) Guantanamo Bay, where the United States had “plenary control, or practical sovereignty”).
2. Plaintiffs’ challenges fare no better if framed as claims that the Proclamation
violates rights against religious discrimination under the equal-protection component of the Fifth Amendment’s Due Process Clause and under the Establishment
Clause. Plaintiffs’ theory is the same as to both Clauses—that the Proclamation is a
20
pretext for discrimination on account of religion. But that theory fails because nonresident aliens seeking to enter the country lack constitutional rights regarding entry
in the first place. See supra p. 19.
What is more, Congress has repeatedly designated members of certain religious
groups—such as Soviet Jews, Evangelical Christians, and members of the Ukrainian
Orthodox Church—as presenting “special humanitarian concern to the United
States” for immigration purposes. 8 U.S.C. § 1157(a)(3) & note; see Department of
State, Foreign Operations, and Related Programs Appropriations Act, 2016, Pub. L.
No. 114-113, div. K, § 7034(k)(8)(A), 129 Stat. 2705, 2765 (2015) (reauthorizing this
designation). That accepted practice underscores the inapplicability in this context
of the religious-nondiscrimination rights invoked by plaintiffs.
Plaintiffs cannot make an end-run around the territorial limits on constitutional
rights by relying on the alleged stigmatizing effect on individuals within the United
States of a challenged decision about whether nonresident aliens outside this country
are admitted. To hold otherwise would allow bootstrapping a constitutional claim
based on government action regulating only aliens beyond constitutional protection.
Amici are aware of no instance, outside the present context, in which a U.S. citizen
or alien resident in this country prevailed on an Establishment Clause claim based on
the stigma allegedly perceived by how the government treated other persons who
possessed no constitutional rights regarding entry. Cf. Lamont v. Woods, 948 F.2d
825, 827, 843 (2d Cir. 1991) (allowing an Establishment Clause claim to proceed
based on the unique taxpayer-standing doctrine in a challenge to the expenditure of
government funds in foreign countries).
21
B. Even if the constitutional provisions at issue could somehow apply extraterritorially, there is still no constitutional violation from the Proclamation’s limits on
the entry of nonresident aliens abroad. Plaintiffs’ Fifth Amendment claim would
thus fail for this reason as well.
1.
There can be no Fifth Amendment violation if one is not deprived of a con-
stitutionally protected interest in life, liberty, or property. E.g., Swarthout v. Cooke,
562 U.S. 216, 219 (2011) (per curiam); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 59 (1999). And nonresident aliens abroad have no constitutionally protected interest in entering the United States. See Mandel, 408 U.S. at 762. Even apart from
the issue of entry into the United States, “[t]here is no constitutionally protected
interest in either obtaining or continuing to possess a visa.” Louhghalam v. Trump,
230 F. Supp. 3d 26, 35 (D. Mass. 2017). Similarly, multiple courts of appeals have
rejected due-process claims regarding visa issuance or processing. See, e.g., Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs,
104 F.3d 1349, 1354 (D.C. Cir. 1997); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d
Cir. 1990); De Avilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981). Thus, plaintiffs
lack support for the notion that aliens have due-process claims to advance.
2. In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam), a panel
of the Ninth Circuit posited that several categories of aliens, other than lawful permanent residents, may have “potential” claims to constitutional protections regarding travel and entry. Id. at 1166. That suggestion was incorrect because the four categories of aliens cited by the Ninth Circuit lack valid constitutional claims.
22
First, there are no constitutional rights regarding prospective entry for aliens
who are in the United States “unlawfully.” Id. The INA provides that visas issued
to aliens seeking admission to the country confer no entitlement to be admitted, and
that visas can be revoked at any time in the Executive’s discretion. 8 U.S.C.
§ 1201(h)-(i). Even as to an alien who was admitted into the country under a visa,
“revocation of an entry visa issued to an alien already within our country has no effect upon the alien’s liberty or property interests,” and thus cannot support a dueprocess challenge. Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981).
If removal proceedings—which involve the distinct situation of potential detention and forcible removal—were instituted against an alien who is in this country and
whose visa was revoked, that alien would have certain due-process protections under
the Fifth Amendment. See Demore v. Kim, 538 U.S. 510, 523 (2003) (noting that it is
“well established” that aliens have due-process rights in deportation hearings). But
the Supreme Court has never held that the Fifth Amendment is violated when restrictions are placed on nonresident aliens abroad seeking to enter the country. Cf.
Landon, 459 U.S. at 32.
Second, this Proclamation does not cover any nonresident alien visa holders who
travelled internationally and are attempting to reenter the country. The Proclamation applies only to aliens who were outside the United States on the effective date
of the Proclamation, who did not have a valid visa on the effective date of the Proclamation, and who did not have a visa that was canceled or revoked under Executive
Order 13,769 of January 27, 2017. Proclamation §§ 3(a), 6(d). Regardless, Landon
does not establish that “non-immigrant visaholders” have due-process rights when
23
seeking to return from abroad. See Washington, 847 F.3d at 1166 (citing Landon, 459
U.S. at 33-34). Landon involved a resident alien, and suggested that any process due
must account for the circumstances of an alien’s ties to this country. See 459 U.S. at
32-34. Those ties are significantly less in the case of a nonresident alien who was
temporarily admitted on a nonimmigrant visa. In any event, Landon was decided before Congress changed the nature of an alien’s interest in visa possession by amending the INA, in 2004, to provide that “[t]here shall be no means of judicial review . . .
of a revocation” of a visa, “except in the context of a removal proceeding if such
revocation pro-vides the sole ground for removal under” the INA. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 5304(a), 118
Stat. 3638, 3736 (codified at 8 U.S.C. § 1201(i)).
Third, there are no viable due-process claims for aliens abroad seeking refugee
status. See Washington, 847 F.3d at 1166. That argument morphs statutory protections for those seeking asylum, see 8 U.S.C. § 1158, into constitutional protections
for refugees. Asylum and refugee admission are not the same thing. The INA’s asylum protection can be sought by individuals who are already “physically present in
the United States or who arrive[] in the United States.” 8 U.S.C. § 1158(a)(1). Only
an alien outside the United States may apply to be admitted as a refugee. See id.
§§ 1101(a)(42), 1157(a), 1158(a), (c)(1), 1181(c). Hence, § 1182(f) independently permits the Executive to deny refugee applicants entry into the United States. Similarly,
statutory provisions under the United Nations Convention Against Torture (CAT)
provide that certain aliens may not be returned to a country in which they fear torture, “regardless of whether the person is physically present in the United States.”
24
8 U.S.C. § 1231 note. The CAT provisions, however, merely limit the possible countries to which an alien can be returned and say nothing about overriding the President’s statutory authority to restrict alien entry into the United States. See id.
§ 1182(f).
Fourth, plaintiffs lack viable due-process arguments based on visa applicants
who have a relationship with a U.S. resident or institution. See Washington, 847 F.3d
at 1166 (citing Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in the judgment); id.
at 2142 (Breyer, J., dissenting); Mandel, 408 U.S. at 762–65. Din did not hold that
such due-process rights exist. To the contrary, the narrowest opinion concurring in
the judgment in Din expressly did not decide whether a U.S. citizen has a protected
liberty interest in the visa application of her alien spouse, such that she was entitled
to notice of the reason for the application’s denial. See 135 S. Ct. at 2139-41 (Kennedy, J., concurring in the judgment). In fact, the concurrence reasoned that, even if
due process applied in this context, the only process possibly required was that the
Executive give a “facially legitimate and bona fide reason” for denying a visa to an
alien abroad. Id. at 2141.
And the Din concurrence’s standard is plainly met here by the Proclamation’s
lengthy recitation of national-security reasons. See Proclamation §§ 1-2. The Proclamation therefore already provides whatever process may be due, as it publicly announces the “facially legitimate and bona fide” invocation of the President’s 8
U.S.C. § 1182(f) national-security and foreign-affairs powers to restrict entry. Mandel, 408 U.S. at 770.
25
Conclusion
The Court should reverse the district court’s order enjoining the Proclamation.
Respectfully submitted.
Steve Marshall
Attorney General of Alabama
Ken Paxton
Attorney General of Texas
Mark Brnovich
Attorney General of Arizona
Jeffrey C. Mateer
First Assistant Attorney General
Leslie Rutledge
Attorney General of Arkansas
s/ Scott A. Keller
Scott A. Keller
Solicitor General
Pamela Jo Bondi
Attorney General of Florida
Derek Schmidt
Attorney General of Kansas
Jeff Landry
Attorney General of Louisiana
Joshua D. Hawley
Attorney General of Missouri
Michael DeWine
Attorney General of Ohio
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.: (512) 936-1700
Fax: (512) 474-2697
scott.keller@oag.texas.gov
26
Mike Hunter
Attorney General of Oklahoma
Alan Wilson
Attorney General of South Carolina
Patrick Morrisey
Attorney General of West Virginia
27
Certificate of Service
I hereby certify that on November 3, 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
28
Certificate of Compliance
This brief complies with the typeface requirements of Rule 32(a)(5) and the type
style requirements of Rule 32(a)(6) because it is prepared in a proportionally spaced
typeface in Microsoft Word using 14-point Equity typeface and with the type-volume
limitation because it contains under 6,500 words.
s/ Scott A. Keller
Scott A. Keller
29
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