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]

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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 1875 K Street, N.W. Washington, D.C. 20006-1238 Telephone: (202) 303-1000 Facsimile: (202) 303-2000 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 1875 K Street, N.W. Washington D.C. 20006-1238 Telephone: (202) 303-1000 Facsimile: (202) 303-2000 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Effective 12/01/2016 No. ____________ Caption: __________________________________________________ CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Type-Volume Limit, Typeface Requirements, and Type-Style Requirements Type-Volume Limit for Briefs: Appellant’s Opening Brief, Appellee’s Response Brief, and Appellant’s Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee’s Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus Brief may not exceed 6,500 words or 650 lines. Amicus Brief in support of an Opening/Response Brief may not exceed 7,650 words. Amicus Brief filed during consideration of petition for rehearing may not exceed 2,600 words. Counsel may rely on the word or line count of the word processing program used to prepare the document. The word-processing program must be set to include headings, footnotes, and quotes in the count. Line count is used only with monospaced type. See Fed. R. App. P. 28.1(e), 29(a)(5), 32(a)(7)(B) & 32(f). Type-Volume Limit for Other Documents if Produced Using a Computer: Petition for permission to appeal and a motion or response thereto may not exceed 5,200 words. Reply to a motion may not exceed 2,600 words. Petition for writ of mandamus or prohibition or other extraordinary writ may not exceed 7,800 words. Petition for rehearing or rehearing en banc may not exceed 3,900 words. Fed. R. App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) & 40(b)(1). Typeface and Type Style Requirements: A proportionally spaced typeface (such as Times New Roman) must include serifs and must be 14-point or larger. A monospaced typeface (such as Courier New) must be 12-point or larger (at least 10½ characters per inch). Fed. R. App. P. 32(a)(5), 32(a)(6). This brief or other document complies with type-volume limits because, excluding the parts of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of citations, statement regarding oral argument, signature block, certificates of counsel, addendum, attachments): [ ] this brief or other document contains [ ] this brief or other document has been prepared in a proportionally spaced typeface using [identify word processing program] in [identify font size and type style]; or [ ] this brief uses monospaced type and contains [state number of] words [state number of] lines This brief or other document complies with the typeface and type style requirements because: (s) [ ] Party Name Dated: this brief or other document has been prepared in a monospaced typeface using [identify word processing program] in [identify font size and type style]. 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

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