Intl. Refugee Assistance v. Donald J. Trump

Filing 77

MOTION by T.A., U.S. Citizen of Yemeni Descent to file amicus curiae brief (FRAP 29(e)) with consent of all parties on appeal within time allowed by FRAP 29(e).. Date and method of service: 11/09/2017 ecf. [1000190267] [17-2231, 17-2232, 17-2233, 17-2240] Richard Bernstein [Entered: 11/09/2017 04:31 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/Cross-Appellants,
v.
DONALD J. TRUMP, et al.
Defendants-Appellants.
______________________
On Appeal from an Order of the United States
District Court for the District of Maryland
______________________
United States District Judge Theodore D. Chuang
Nos. 8:17-cv-00361-TDC, 8:17-cv-02921-TDC, 1:17-cv-02969-TDC
MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
T.A., A U.S. CITIZEN OF YEMENI DESCENT, IN SUPPORT OF
PLAINTIFFS-APPELLEES/CROSS-APPELLANTS
[caption continued on next page]
WILLKIE FARR & GALLAGHER LLP
Richard D. Bernstein
[e-mail]
1875 K Street, N.W.
Washington, D.C. 20006-1238
Telephone: [phone]
Facsimile: [phone]
Counsel for Amicus Curiae T.A.
November 9, 2017

______________________
No. 17-2231(L)
On Cross-Appeal from the United States District Court for the District of
Maryland, Southern Division
(8:17-cv-00361-TDC)
______________________
No. 17-2232
(8:17-cv-02921-TDC)
______________________
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, in his official capacity as Secretary of State;
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the
United States,
Defendants-Appellants.
______________________
No. 17-2233
(1:17-cv-02969-TDC)
______________________
EBLAL ZAKZOK; SUMAYA HAMADMAD; FARED MUQBIL;
JOHN DOE #1; JOHN DOE #2; JOHN DOE #3,
Plaintiffs-Appellees,

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE T.A., A U.S.
CITIZEN OF YEMENI DESCENT, IN SUPPORT OF PLAINTIFFSAPPELLEES/CROSS-APPELLANTS
1. Amicus T.A1 respectfully moves for leave to file an amicus curiae brief in
support of Plaintiffs-Appellees/Cross-Appellants that demonstrates a narrow,
textualist basis for enjoining the travel bans in the September 24, 2017
Presidential Proclamation, “Enhancing Vetting Capabilities and Processes
for Detecting Attempted Entry Into the United States by Terrorists or Other
Public-Safety Threats.” 82 FR 45161 (Sept. 24, 2017) (“EO-3”). Amicus
states as follows:

2. In the EO-2 appeal, this Court granted leave to T.A. to file an amicus brief.

3. T.A. is a Muslim and United States citizen who was raised in Yemen.
T.A.’s father and many members of T.A.’s extended family hold Yemeni
passports and reside abroad. They are barred from entering the United
States under the Amended Order. T.A. has a direct interest in the outcome
of this case.

1

This motion and brief use initials, rather than T.A.’s full name, to reduce the risk
of potential reprisals to T.A. or his family members. Doe v. Pub. Citizen, 749 F.3d
246, 273 (4th Cir. 2014) (use of pseudonym may be appropriate, even for a party,
when “identification poses a risk of retaliatory physical or mental harm to the
requesting party or even more critically, to innocent non-parties”) (quoting James
v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)).
1

4. T.A. is concerned about the real-life implications of EO-3. T.A. is
fundamentally concerned with the interference in family relations that will
result from enforcement of EO-3, as well as its limitations on immigration
and non-immigrant travel.
5. The proposed amicus brief, attached hereto as Appendix A, is helpful to the
Court because it focuses on two issues that previously have not been the
focus of the parties. First, unlike EO-2’s bans, EO-3’s bans are of unlimited
duration—they have neither a time limit nor a link to a finite event. The
unlimited duration contradicts the words “suspend,” “period,” and
“necessary” in 8 U.S.C. § 1182(f), would render other provisions of the
Immigration and Naturalization Act practical nullities, and contravenes
fundamental norms of separation of powers.

The unlimited duration of

EO-3’s bans thus provides an additional, narrow, and textualist basis for
enjoining those bans.
6. Second, the cross-appeal is correct. In accord with the texts of the pertinent
statutory provisions and the Establishment Clause, the preliminary
injunction should enjoin all applications of EO-3’s illegal travel bans,
including applications to persons who lack a prior U.S. relationship. There
are no longer any countering equities to be balanced. This is because the
Trump Administration’s extreme vetting—without any travel ban—

2

dramatically reduced the risks of inadequate information before EO-3 was
issued.

Before EO-3, what President Trump calls this Administration’s

“extreme vetting” had reduced visas from the designated countries 55%
while all EO-2 bans were completely enjoined. Tellingly, the Government
cannot and does not claim that, during the 100 days when all EO-2 travel
bans were fully enjoined, this Administration was forced to admit with
inadequate information even one person with no prior U.S. relationship from
the designated countries.
CONCLUSION
Amicus respectfully requests that this Court grant leave to file the
amicus curiae brief attached hereto.
Dated:
November 9, 2017

Respectfully submitted,
WILLKIE FARR &
GALLAGHER LLP
By:

3

/s/ Richard D. Bernstein
Richard D. Bernstein
[e-mail]
1875 K Street, N.W.
Washington D.C. 20006-1238
Telephone: [phone]
Facsimile: [phone]

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Effective 12/01/2016

No. ____________

Caption: __________________________________________________

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11/14/2016 SCC

CERTIFICATE OF SERVICE

November 9, 2017
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ Richard D. Bernstein
___________________________
Signature

11/09/2017
________________________
Date