Intl. Refugee Assistance v. Donald J. Trump

Filing 90

AMICUS CURIAE BRIEF by New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia in electronic and paper format. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194133] [17-2231, 17-2232, 17-2233, 17-2240] Anisha Dasgupta [Entered: 11/16/2017 11:09 PM]

17-2231(L)
17-2232(C), 17-2233(C), 17-2240(XAP)

United States Court of Appeals
for the Fourth Circuit
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, etc., et al.,
Plaintiffs-Appellees,
ALLAN HAKKY, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, etc., et al,
Defendants-Appellants.
On Appeal from the United States District Court
for the District of Maryland at Greenbelt
BRIEF FOR AMICI CURIAE STATES OF NEW YORK, CALIFORNIA,
CONNECTICUT, DELAWARE, ILLINOIS, IOWA, MAINE,
MARYLAND, MASSACHUSETTS, NEW MEXICO, OREGON, RHODE
ISLAND, VERMONT, VIRGINIA, and WASHINGTON, and the
DISTRICT OF COLUMBIA IN SUPPORT OF APPELLEES

BARBARA D. UNDERWOOD
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
ZAINAB A. CHAUDHRY
Assistant Solicitor General
of Counsel
(Counsel list continues on signature pages.)

ERIC T. SCHNEIDERMAN
Attorney General
State of New York
120 Broadway
New York, NY 10271
[phone]
Dated: November 16, 2017

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................... ii
INTRODUCTION AND INTERESTS OF AMICI..................................... 1 
ARGUMENT ............................................................................................... 5 
I. 

THE PROCLAMATION PERPETUATES, AND MAKES PERMANENT,
THE HARM THAT ITS PREDECESSOR ORDERS INFLICTED ON THE
AMICI STATES...................................................................................... 5 
A.  Harms to the Amici States’ Proprietary Interests. .................. 5 
B.  Harms to the Amici States’ Sovereign and QuasiSovereign Interests .................................................................. 22 

II. 

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
GRANTING THE PRELIMINARY INJUNCTION. ...................................... 25 
A.  Balancing the Equities and Weighing the Relative
Harms Tips Decidedly in Favor of Preliminary Relief. .......... 26 
B.  The Nationwide Scope of the Injunction Is Proper in
View of the Proclamation’s Violations and Actual and
Threatened Harms. .................................................................. 32 

CONCLUSION ......................................................................................... 35 

i

TABLE OF AUTHORITIES
Cases

Page(s)

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982) .............................................................................. 29
American Civil Liberties Union of Ky. v. McCreary County, Ky.,
354 F.3d 438 (6th Cir. 2003) .......................................................... 27, 34
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .............................................................. 27
East Tenn. Nat. Gas Co. v. Sage,
361 F.3d 808 (4th Cir. 2004) ................................................................ 32
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017) ............................................................ 6, 25
International Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir. 2017) ........................................................ passim
Moore v. City of East Cleveland,
431 U.S. 494 (1977) .............................................................................. 28
Ostergren v. Cuccinelli,
615 F.3d 263 (4th Cir. 2010) ................................................................ 34
Trump v. International Refugee Assistance Project,
137 S. Ct. 2080 (2017) .................................................................... 26, 29
United States v. Oakland Cannabis Buyers’ Coop.,
532 U.S. 483 (2001) .............................................................................. 32
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ........................................................ 25, 30
Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982) .............................................................................. 26
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ............................................................................ 26, 27
ii

TABLE OF AUTHORITIES
Cases

Page(s)

WV Association of Club Owners & Fraternal Servs., Inc. v. Musgrave,
553 F.3d 292 (4th Cir. 2009) ................................................................ 26
Constitutions
Cal. Const.
art. I, § 4 ............................................................................................... 22
art. I, § 7 ............................................................................................... 22
art. I, § 8 ............................................................................................... 22
art. I, § 31 ............................................................................................. 22
N.M. Const. art. II, § 11 ........................................................................... 22
Ill. Const.
art. I, § 3 ............................................................................................... 22
art. I, § 17 ............................................................................................. 22
Statutes
8 U.S.C. § 1182 ......................................................................................... 31
Cal. Civ. Code § 51(b) ............................................................................... 22
Cal. Gov’t Code
§§ 11135-11137 ..................................................................................... 22
§ 12900 et seq. ...................................................................................... 22
Conn. Gen. Stat. § 46a-60 ........................................................................ 22
Del. Code § 710 et seq. .............................................................................. 22
Ill. Comp. Stat.
ch. 740, § 23/5(a)(1) .............................................................................. 22
ch. 775, § 5/1-102(A) ............................................................................. 22
ch. 775, § 5/10-104(A)(1) ...................................................................... 22
Maine Rev. Stat.
§ 784 ...................................................................................................... 22
§ 4551-4634 .......................................................................................... 22
iii

TABLE OF AUTHORITIES
Statutes

Page(s)

Md. Code, State Gov’t § 20-606 ................................................................ 22
Mass. Gen. L.
ch. 93, § 102 .......................................................................................... 22
ch. 151B, § 1 ......................................................................................... 22
ch. 151B, § 4 ......................................................................................... 22
N.M. Stat. § 28-1-7.................................................................................... 22
Or. Rev. Stat. § 659A.006(1)..................................................................... 22
R.I. Gen. Laws § 28-5-7(1)(i) .................................................................... 22
Vt. Stat.
tit. 9, §§ 4500-4507 ............................................................................... 22
tit. 21, § 495 .......................................................................................... 22
Wash. Rev. Code § 49.60.030(1) ............................................................... 22
Executive Orders/Proclamations
Executive Order No.13,769 (Jan. 27, 2017), 82 Fed.Reg.
8,977 (Feb. 1, 2017) ................................................................................ 2
Executive Order No.13,780 (Mar. 6, 2017), 82 Fed.Reg.
13,209 (Mar. 9, 2017) ............................................................................. 2
Proclamation No. 9645 (Sept. 24, 2017), 82 Fed.Reg. 45,161
(Sept. 27, 2017)............................................................................. passim
Miscellaneous Authorities
Abha Bhattarai, Even Canadians are Skipping Trips to the
U.S. After Trump Travel Ban, Wash. Post (Apr. 14, 2017),
at http://tinyurl.com/WashPost-Bhattarai-Tourism........................... 19

iv

TABLE OF AUTHORITIES
Miscellaneous Authorities

Page(s)

Alana Wise, Travel to the United States Rose in April, But
Industry Remains Wary, Reuters (June 6, 2017), at
http://tinyurl.com/Reuters-Wise-TraveltoUS...................................... 20
Anna Maria Barry-Jester, Trump’s New Travel Ban Could
Affect Doctors, Especially in the Rust Belt and Appalachia,
FiveThirtyEight (Mar. 6, 2017), at http://goo.gl/dT2Z6h ................... 24
Hironao Okahana, Data Sources: Admissions Yields of
Prospective International Graduate Students: A First Look
(Council of Graduate Schools, June 2017),
http://tinyurl.com/CouncilGradSchs-Okahana-Survey ........................ 9
Immigrant Doctors Project, https://immigrantdoctors.org ..................... 24
Institute of Int’l Educ., Advising International Students in
an Age of Anxiety (Mar. 31, 2017), at
http://tinyurl.com/IIE-AdvisingStudents ............................................ 19
Kirk Carapezza, Travel Ban’s ‘Chilling Effect’ Could Cost
Universities Hundreds of Millions, Nat’l Pub. Radio (Apr.
7, 2017), at http://goo.gl/CqkNEy .................................................... 9, 10
Maryam Saleh, Hospitals in Trump Country Suffer As
Muslim Doctors Denied Visas to U.S., The Intercept (Aug.
17, 2017), at http://tinyurl.com/Intercept-Saleh-MD ......................... 25
Sam Petulla, Entry Ban Could Cause Doctor Shortages in
Trump Territory, New Research Finds, NBC News (Mar.
7, 2017), at http://tinyurl.com/NBCNews-PetullaMDShortages .............................................................................. 9, 14, 16
U.S. Department of State, Bureau of Consular Affairs,
Reciprocity and Civil Documents by Country, at
https://travel.state.gov/content/visas/en/fees/reciprocityby-country.html/ ................................................................................... 11
v

INTRODUCTION AND INTERESTS OF AMICI
The States of New York, California, Connecticut, Delaware, Illinois,
Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode
Island, Vermont, Virginia, and Washington, and the District of Columbia,
submit this brief as amici curiae in support of affirmance. This appeal
arises from a challenge to Presidential Proclamation No. 9645: the third
in a series of presidential orders executed this year that imposed
discriminatory bans on the entry into the United States of nationals from
six overwhelmingly Muslim countries.1 The United States District Court
for the District of Maryland (Chuang, J.) issued a preliminary injunction
restraining defendants from implementing those sections of the
Proclamation against individuals who have a bona fide relationship with
a person or entity in the United States.2 IRAP v. Trump, 2017 WL
4674314 (D.Md. Oct. 17, 2017). The district court held that interim relief
was warranted because plaintiffs would experience irreparable injury in

See Proclamation No.9645, § 2(a)-(c),(e),(g)-(h) (Sept. 24, 2017),
82 Fed. Reg. 45,161 (Sept. 27, 2017).
1

The injunction does not cover the provisions that bar entry of a
limited number of government officials from Venezuela and all North
Korean nationals, see Proclamation § 2(d),(f).
2

the absence of an injunction, the balance of the equities favored an
injunction, and plaintiffs had made a strong showing of the likelihood of
success on the merits of their claims under Immigration and Nationality
Act § 1152(a) and the Establishment Clause. This Court previously
affirmed an injunction entered against the similar travel ban contained
in the second of two Executive Orders that preceded the Proclamation,3
in an earlier stage in this case.4
This brief supplements plaintiffs’ brief by providing the perspective
and experience of 15 additional sovereign States and the District of
Columbia. Like its predecessors, the Proclamation’s entry ban gravely
and irreparably harms our universities, hospitals, businesses, communities, and residents. Keeping the preliminary injunction in place will
continue to provide critical protection to the state interests the ban
endangers.

Executive Order No.13,780, §§ 2(c),6(a)-(b) (Mar. 6, 2017), 82
Fed.Reg. 13,209 (Mar. 9, 2017); see also Executive Order No.13,769,
§§ 3(c),5(a)-(c),5(e) (Jan. 27, 2017), 82 Fed.Reg. 8,977 (Feb. 1, 2017).
3

See IRAP v. Trump, 857 F.3d 554 (4th Cir.) (en banc), cert. granted,
137 S.Ct. 2080, vacated and remanded, 2017 WL 4518553 (Oct. 10, 2017).
4

2

Amici thus have a strong interest in plaintiffs’ challenges to the
Proclamation’s entry ban. Indeed, like plaintiffs here, many of the amici
States have brought suits challenging the two preceding Executive
Orders on the grounds that certain provisions of those Orders violated
the Establishment Clause of the First Amendment and various other
constitutional and statutory provisions.5 We have also previously filed
briefs amicus curiae in this and related cases, including briefs supporting
the entry of preliminary injunctions against the previous Orders, and
briefs opposing any stay of such injunctions.6

Many of the amici States challenged the March Order in
Washington v. Trump, No.17-cv-141 (W.D.Wash. 2017). They challenged
the January Order in Washington v. Trump, No.17-cv-141 (W.D.Wash.
2017), stay pending appeal denied, 847 F.3d 1151 (9th Cir. 2017); Mass.
& N.Y. Amicus Br. (15 States and D.C.), Washington v. Trump, No.1735105 (9th Cir. 2017), ECF No.58-2; Aziz v. Trump, 2017 WL 580855
(E.D.Va. 2017).
5

N.Y. Amicus Br. (17 States and D.C.), Trump v. IRAP and Trump
v. Hawaii, Nos.16-1436, 16-1540 (U.S. Sept. 18, 2017); N.Y. Amicus Br.
(15 States and D.C.), Trump v. Hawaii, No.16-1540 (U.S. July 18, 2017);
Va. Amicus Br. (16 States and D.C.), Trump v. IRAP, Nos.16-A1190, 16A1191 (U.S. June 12, 2017); N.Y. Amicus Br. (16 States and D.C.), Trump
v. IRAP, Nos.16A-1190, 16A-1191 (U.S. June 12, 2017); Ill. Amicus Br.
(16 States and D.C.), Hawaii v. Trump, No.17-15589 (9th Cir. Apr. 20,
2017), ECF No.125; Va. & Md. Amicus Br. (16 States and D.C.), IRAP v.
Trump, No.17-1351 (4th Cir. Apr. 19, 2017), ECF No.153.
6

3

While amici States differ in many ways, all benefit from
immigration, tourism, and international travel by students, academics,
skilled professionals, and businesspeople. Like the previous bans, the
disputed provisions of the Proclamation continue to significantly disrupt
the ability of our States’ public colleges and universities to recruit and
retain students and faculty, impairing academic staffing and research
needs, and causing the loss of tuition and tax revenues, among other
costs. The Proclamation likewise continues to disrupt the provision of
medical care at amici States’ hospitals and further harms our science,
technology,

finance,

and

tourism

industries

by

inhibiting—

permanently—the free exchange of information, ideas, and talent
between the designated countries and our States, causing long-term
economic and reputational damage. In addition, the ban has made it more
difficult for the States to effectuate our own constitutional and statutory
policies of religious tolerance and nondiscrimination.
If this Court vacates or narrows the preliminary injunction, all
amici States will face further immediate, concrete—and likely
permanent—harms flowing directly from the the disputed provisions of
the Proclamation. Accordingly, amici States have a strong interest in
4

ensuring that the protection provided by the nationwide injunction
remains in place throughout the course of this litigation.

ARGUMENT
I.

THE PROCLAMATION PERPETUATES, AND MAKES PERMANENT,
THE HARM THAT ITS PREDECESSOR ORDERS INFLICTED ON
THE AMICI STATES.
A.

Harms to the Amici States’ Proprietary Interests.

The disputed provisions of the Proclamation block the entry of all
immigrants and most nonimmigrants from six Muslim-majority
countries,7 including those who seek to be students and faculty at our
public universities, physicians and researchers at our medical
institutions, employees of our businesses, and guests who contribute to
our economies when they come here as tourists or for family visits.8 The

Five of these countries were covered under the previous travel
bans: Iran, Libya, Somalia, Syria, and Yemen. The sixth country is Chad.
7

The Proclamation bars all immigration from the six affected
countries; the issuance of all non-immigrant visas to Syrians; all business
and tourist visas for nationals of Chad, Libya, and Yemen; and all
nonimmigrant visas for nationals of Iran, except certain student and
exchange visas that will be subject to additional but unspecified scrutiny.
See § 2(a)-(c),(e),(g)-(h).
8

5

provisions are thus irreparably harming the work of our state
institutions and treasuries.9 See Washington v. Trump, 847 F.3d 1151,
1169 (9th Cir. 2017); Hawaii v. Trump, 859 F.3d 741, 783 (9th Cir. 2017)
(recognizing such irreparable harms), cert. granted, 137 S.Ct. 2080,
vacated and remanded, 2017 WL 4782860 (Oct. 24, 2017).
Harms to State Colleges and Universities. State colleges and
universities rely on faculty and students from across the world. By
interfering with the entry of individuals from the designated countries,
the disputed provisions of the Proclamation continue to seriously disrupt
our public institutions’ ability to recruit and retain students and
faculty—causing lost tuition revenue, increased administrative burdens,
and the expenditure of additional university resources.10
As with the two previous travel bans, announcement of the
Proclamation’s entry ban has created serious doubt as to whether faculty

All of the amici States support the legal arguments put forth in
this brief, although not every specified harm occurs in every State. For
example, almost all amici States operate state hospitals, but Delaware
does not.
9

See Third Am. Compl. ¶¶ 41, 43-44, 53, 55-56, 80, 93, 105, 107108, 125, Washington v. Trump, No.17-cv-141 (W.D.Wash.), ECF No.198.
10

6

from the designated countries will be able to obtain the visas they need
to timely assume positions with public universities in amici States. For
example, two scholars who had accepted offers at the University of
Washington in 2017 were unable to enter to begin their positions due to
the initial travel ban.11 Similarly, officials at the University of
Massachusetts—which typically hires a dozen new employees from the
affected countries annually—believe that the Proclamation’s now
indefinite entry ban will result in the University being “permanently
unable to hire top-ranked potential faculty, lecturers or visiting scholars
from the affected countries, because [the Proclamation] may preclude
them from reaching the United States to fulfill their teaching
obligations.”12
The Proclamation’s entry ban also continues to disrupt the ability
of our public universities to recruit and retain foreign students from the
designated countries, imperiling hundreds of millions of tuition dollars

11

Id. ¶ 40.

12

Id. ¶ 93.
7

and other revenue generated from such students, as well as important
academic research projects.13
Before this series of travel bans was implemented, amici States’
colleges and universities had already made numerous offers of admission
for the 2017-2018 academic year to students from the affected countries
and—but for the bans’ interference with their continuing admissions
process—might have admitted many more.14 Some schools are continuing
to make such offers, including to students from nations designated in the
Proclamation. But some of these students have withdrawn applications;
others have had to abandon entirely their plans to enroll in our university
programs due to the bans; and many have chosen not to apply at all,
resulting in a significant decline in international student applications at
many of amici States’ universities.15
Indeed, in this climate of uncertainty and discrimination, forty
percent of colleges surveyed across the nation reported a drop in

13

E.g., id. ¶¶ 38, 43-46, 53, 57, 86, 94-95, 105, 107, 112.

14

E.g., id. ¶¶ 43-44.

15

E.g., id. ¶¶ 37, 46, 53, 122.
8

applications from foreign students in the wake of the first two travel
bans.16 Graduate departments in science and engineering have reported
that “international student applications for many programs declined by
20 to 30 percent for 2017 programs.”17 Additionally, 80 percent of college
registrars and admissions officials surveyed have serious concerns about
their future application yields from international students.18 And 46
percent of graduate deans have reported “substantial” declines in
admission yields for international students.19 Not surprisingly, countries
that are perceived as more welcoming—such as Canada, the United
Kingdom, Australia, and New Zealand—have already seen a jump in

See Kirk Carapezza, Travel Ban’s ‘Chilling Effect’ Could Cost
Universities Hundreds of Millions, Nat’l Pub. Radio (Apr. 7, 2017)
(internet). (For authorities available on the internet, full URLs are listed
in the table of authorities.)
16

Sam Petulla, Entry Ban Could Cause Doctor Shortages in Trump
Territory, New Research Finds, NBC News (Mar. 7, 2017) (internet).
17

18

Carapezza, supra.

Hironao Okahana, Data Sources: Admissions Yields of Prospective International Graduate Students (Council of Graduate Schs., June
2017) (internet).
19

9

applications in this same time period.20 This drain of highly qualified
student talent will continue under the Proclamation.
The ability of state institutions of higher education to retain their
existing foreign students and faculty has also been compromised by the
broad, continuing entry ban contained in the Proclamation. Amici States’
public universities and colleges currently have hundreds of students and
faculty members from the targeted countries. For example, at
Washington State University, there are 140 students and 9 faculty
members from the countries designated in the Proclamation, and 105
such graduate students at the University of Washington.21 The
University of Massachusetts has 180 similarly situated students and 25
employees.22 There are 529 such students in the University of California
system; 250 in the California State University system; 297 at the State
University of New York; and 61 at Portland State University.23

20

Carapezza, supra.

21

Third Am. Compl. ¶¶ 35-36.

22

Id. ¶¶ 91, 94.

23

Id. ¶¶ 53, 58, 108, 124.
10

Many of these students will need to apply for additional visas
during the course of their academic studies because only single-entry
visas are permitted from some of the affected countries, and because the
required visas are valid only for relatively short periods.24 And those
students and faculty members whose visas are set to expire will face
obstacles to renewal—if renewal of their visas is even possible under the
disputed provisions of the Proclamation, which prohibit the issuance of
most nonimmigrant visas for nationals of the affected countries. Thus, if
enforcement of the disputed provisions of the Proclamation is permitted,
certain students who are no longer eligible for student visas (e.g., Syrian
students) may be required to discontinue their courses of study. And
other students will face the prospect of not knowing whether they may
be denied access to the U.S. institutions where they are studying,
particularly if the Proclamation calls for them to be subject to heightened
scrutiny and vetting procedures (e.g., Iranian and Somali students).25

U.S. Department of State, Bureau of Consular Affairs, Reciprocity
and Civil Documents by Country (internet) (search by country and visa
types F, M).
24

Although the Proclamation gives consular officers discretion to
waive the travel ban in individual cases, it does not describe the process
25

11

Any such visa delays or denials could jeopardize not only these
individuals’ education or employment, but also any grant funding and
scientific research projects that depend on their work.26 And those whose
visas remain valid for a longer duration may be unwilling to take the risk
of participating in educational, professional, or personal obligations that
require travel outside the United States, and will also face the hardship
of being unable to receive visits from their parents, spouses, children, and
other relatives.27 Indeed, many faculty members and researchers at amici
States’ universities are contemplating leaving their current positions for
opportunities in more welcoming countries in the the wake of the
Proclamation’s now indefinite ban.28

for applying for a waiver, specify a time frame for receiving a waiver, or
set concrete guidelines for issuance of a waiver beyond providing a list of
circumstances in which waivers “may be appropriate.” § 3(c). And there
is no guarantee that a waiver will be issued because the ultimate decision
on whether to issue it lies solely within a consular official’s discretion.
See id.
26

Third Am. Compl. ¶¶ 36, 42, 55, 91, 94.

27

Id. ¶¶ 37-38, 54, 78-79, 91, 94, 107, 109-110, 112, 123.

28

Id. ¶¶ 38, 42, 111.
12

The foreign-national scholars and faculty employed by or recruited
by our state universities typically have specialized expertise that cannot
easily be replaced. Universities that are delayed in or prevented from
recruiting international faculty and related staff thus suffer significant
financial and reputational harm, including delayed or lost federal
funding for research efforts.29 Our educational institutions have needed
to expend considerable amounts of scarce university resources to make
contingency plans for filling unexpected gaps in faculty rosters caused by
the exclusion or possible departure of scholars from the designated
countries. Despite this effort, there is no guarantee that our universities
will be able to meet all of their needs.30
While public colleges and universities are always subject to federal
immigration law and policy, these successive travel bans have injured
them unexpectedly, by upending with no advance notice the established

29

Id. ¶¶ 38, 43-44, 55, 105-106, 112.

Id. ¶ 55 (Proclamation “disrupts the ability of California’s universities and colleges to meet staffing needs”); id. ¶ 93 (Proclamation will
“severely interfere” with ability of University of Massachusetts “to hire
top-ranked” faculty).
30

13

framework around which they have designed their faculty recruitment
and student enrollment processes.31 As explained above, this has left
seats unfilled, tuition dollars irretrievably lost, and important academic
programs and research projects in peril.
The disputed provisions of the Proclamation’s third ban have also
harmed and will continue to harm our educational institutions’ core
missions of excellence in education and scholarship. The loss of students,
scholars, and faculty from the affected nations not only impairs
important academic and medical research at our States’ universities, but
also inhibits the free exchange of information, ideas, and talent that is so
essential to academic life and our state universities’ missions.32
Harms to State Hospitals and Medical Institutions. The
disputed provisions of the Proclamation, like the travel bans of the earlier
Executive Orders, have created staffing disruptions in state hospitals

See Petulla, supra (University of Massachusetts and others have
had to “shift[] their recruitment strategies to avoid a talent drought”).
31

32

Third Am. Compl. ¶¶ 38, 105-106.
14

and medical institutions, which employ physicians, medical residents,
research faculty, and other professionals from the designated countries.33
For example, foreign-national medical residents at public hospitals
often provide crucial services, such as caring for some of the most
underserved populations in our States.34 They are assigned to our state
university hospital residency programs through a computerized “match”
that, after applications and interviews, ranks and assigns residency
candidates to programs nationwide; programs and candidates are
advised of match results in the spring of each calendar year and all new
residents begin their positions on July 1.35
Many state university residency programs regularly match
residents from the affected countries. If a program’s matched residents
are precluded from obtaining a visa under the disputed provisions of the

E.g., id. ¶ 127 (Oregon Health and Sciences University employs
11 such individuals from seven of the countries designated in the
Proclamation).
33

E.g., id. ¶ 115 (New York’s public safety-net hospitals employ a
“significant number” of foreign-national residents in 97 medically
underserved communities).
34

35

Id. ¶ 116.
15

Proclamation, as many of them were under the predecessor travel bans,
the program risks having an insufficient number of residents to meet
staffing needs.36 This continuing uncertainty is of particular concern in
view of the indefinite duration of the Proclamation’s entry ban. The
practical effect of this dilemma is that our state university programs will
be reluctant (or unable) to interview or rank highly-qualified residency
candidates from the designated countries going forward, because there is
no guarantee they will be able to begin or complete their residencies.37
Indeed, residency programs are at this very moment in the process of
interviewing candidates for next year’s match.38
In addition, if current residents who are nationals of the designated
countries cannot renew or extend their visas—as the Proclamation
continues to threaten—state university residency programs will be

The 2017 match took place one day after the revised Executive
Order was scheduled to take effect, and there was serious doubt whether
“[a]s many as several hundred doctors” from the six countries designated
in that Order would be granted waivers to be able to begin the residencies
for which they had matched. Petulla, supra.
36

37

Third Am. Compl. ¶¶ 60, 115, 127.

38

Id. ¶ 115.
16

unable to continue to employ them; these multiyear programs will then
be left with unfilled positions, and further staffing gaps will result.39
Such disruptions will translate into uncertainty in residency training
programs, as well as threats to the provision and quality of health care
services.40 And because patients at our medical facilities must be cared
for, our facilities must quickly adapt to any staffing complications
resulting from the disputed provisions of the Proclamation—and spend
precious time and resources preparing to do so.41
Diminished Tax Revenues and Broader Economic Harms. In
addition to losing the tuition, room and board, and other fees paid by
students at our public universities, amici States have suffered—and will
continue to suffer—other direct and substantial economic losses as a
result of the disputed provisions of the Proclamation, just as we did under
the Proclamation’s predecessors. Every foreign student (whether
attending a public or private college or university), every tourist, and

39

Id.

40

See infra pp. 23-25.

Third Am. Compl. ¶ 59 (shortage of “even one physician” can have
“serious implications” for safety-net hospitals in underserved areas).
41

17

every business visitor arriving in our States contributes to our economies
through their purchases of our goods and services and the tax receipts
that their presence generates. Despite the present preliminary
injunction, and those that were issued against the Proclamation’s
predecessor Orders, this series of successive travel bans during the past
ten months has blocked or dissuaded thousands of individuals—potential
consumers all—from entering amici States, thereby eliminating the
significant tax contributions those individuals would have made.42 That
lost revenue will never be recovered and the lasting economic damage
cannot be undone, even if plaintiffs ultimately prevail.
The contribution of foreign students alone to our States’ economies
is immense. A survey by the Institute of International Education
conducted in the months following the issuance of the initial travel ban
found that “more than 15,000 students enrolled at U.S. universities
during 2015-16 were from the [six] countries named in [the revised
Executive Order]”; more than half of those students attended institutions
in amici States and Hawaii; and, nationwide, “these students contributed

42

See id. ¶¶ 31-32, 62, 75, 87-88, 120-121.
18

$496 million to the U.S. economy, including tuition, room and board and
other spending.”43 For example, in both New York and Illinois, nearly
1,000 foreign nationals from the countries designated in the revised
Order were studying on temporary visas in 2015-2016 in each State, and
they collectively contributed approximately $30 million to each State’s
economy.44 And such figures do not even begin to account for the indirect
economic benefits to our States, such as the contributions of international
students and scholars to innovation in academic and medical research.
Tourism dollars are also a critical component of amici States’
economies. As a result of the successive travel bans, including the ban
announced in the Proclamation, an estimated 4.3 million fewer tourists
are expected to visit the United States this year, resulting in $7.4 billion
in lost revenue; and in 2018, those numbers will increase to 6.3 million
fewer tourists and $10.8 billion in lost revenue.45 This reduction results

Institute of Int’l Educ., Advising International Students in an Age
of Anxiety 3 (Mar. 31, 2017) (internet).
43

44

See id. at app. 1.

See Abha Bhattarai, Even Canadians are Skipping Trips to the
U.S. After Trump Travel Ban, Wash. Post (Apr. 14, 2017) (internet); see
also Third Am. Compl. ¶¶ 30-32 (describing “chilling effect” on tourism
45

19

from trips that were prohibited by the parts of the initial bans that were
not enjoined, or because individual travelers were deterred by fear that
the previous injunctions would be lifted. The now indefinite ban may also
lead to the loss of hundreds of thousands of tourism-related jobs held by
our States’ residents.46
Absent relief from the courts, including interim relief, these broad
chilling effects will likely continue.47 This is hardly surprising in view of
defendants’ clear message to the world that foreign visitors—particularly
those from certain regions, countries, or religions—are unwelcome.
Indeed, the disputed provisions of the Proclamation have made this
message clearer and more permanent.
The disputed provisions of the Proclamation also continue the
profound harms that the initial and revised travel bans have inflicted on
amici States’ ability to remain internationally competitive destinations

in Washington); id. ¶¶ 52, 61 (Proclamation has decreased tourist travel
to California and will cause significant losses in tourism revenues).
Third Am. Compl. ¶¶ 63-64 (Los Angeles tourism board projecting
a $220 million loss in tourism revenue in 2017, which jeopardizes
hundreds of thousands of tourism-related jobs held by City’s residents).
46

Alana Wise, Travel to the United States Rose in April, But
Industry Remains Wary, Reuters (June 6, 2017) (internet).
47

20

for businesses in the sectors of science, technology, finance, and health
care, as well as for entrepreneurs. Even a temporary disruption in our
ability to attract the best-qualified individuals and entities world-wide—
including from the affected countries—puts the institutions and
businesses in our States at a competitive disadvantage in the global
marketplace, particularly where the excluded individuals possess
specialized skills or training.48 And now that the initially temporary
entry bans have become an indefinite ban, defendants’ message of
intolerance and uncertainty more deeply threatens amici States’ ability
to attract and retain the foreign professionals, entrepreneurs, and
companies that are vital to our economies.
Thus, as the experience of amici States shows, our States and our
residents have been subjected to widespread, particularized, and welldocumented harm from the moment the first travel ban was announced
through today—and likely for the foreseeable future.

See Third Am. Compl. ¶¶ 18-23, 33, 51-52, 69-70, 74, 86-87, 113,
118, 120-123.
48

21

B.

Harms to the Amici States’ Sovereign
and Quasi-Sovereign Interests

Decreased Effectiveness of Anti-Discrimination Laws. The
amici States have exercised their sovereign prerogatives to adopt
constitutional provisions and enact laws that protect their residents from
discrimination. For example, our residents and businesses—and, indeed,
many of the amici States ourselves—are prohibited by such state
enactments from taking national origin and religion into account when
determining to whom they can extend employment and other
opportunities.49 The disputed provisions of the Proclamation interfere
with the effectiveness of these laws by encouraging discrimination
against Muslims in general, and nationals of six of the designated
countries in particular.

See, e.g., Cal. Const. art.I, §§ 4,7-8,31; Cal. Civ. Code § 51(b); Cal.
Gov’t Code §§ 11135-11137,12900 et seq.; Conn. Gen. Stat. § 46a-60; 19
Del. Code § 710 et seq.; Ill. Const. art.I, §§ 3,17; 740 Ill. Comp. Stat.
23/5(a)(1); 775 Ill. Comp. Stat. 5/1-102(A); 775 Ill. Comp. Stat. 5/10104(A)(1); 5 Me. Rev. Stat. §§ 784,4551-4634; Md. Code, State Gov’t § 20606; Mass. Gen. L. ch.93, § 102; Mass. Gen. L. ch.151B, §§ 1,4; N.M.
Const. art.II, § 11; N.M. Stat. § 28-1-7; Or. Rev. Stat. § 659A.006(1); R.I.
Gen. Laws § 28-5-7(1)(i); 9 Vt. Stat. §§ 4500-4507; 21 Vt. Stat. § 495;
Wash. Rev. Code § 49.60.030(1).
49

22

Harms to Residents Seeking Medical Care. Like its predecessors, the Proclamation’s entry ban will harm residents seeking medical
care in our States, particularly those in underserved communities. The
countries designated in the Proclamation are important sources of
physicians who provide health care to our residents, particularly in
underserved areas of our States.50 The current ban will thus impede the
States’ efforts to recruit and retain providers of essential primary care,
dental health, and mental health services.51 In New York, safety-net
hospitals—which include all public acute care hospitals, the entire New
York City Health and Hospitals system, and most of the hospitals in
Brooklyn, Queens, and the Bronx—rely heavily on foreign-national
physicians.52 Indeed, many foreign-national physicians work in the
primary care field at a time when primary care physicians are in short
supply in many areas across the country.53

See Third Am. Compl. ¶ 26 (nearly 200 such physicians and
medical residents in Washington); id. ¶ 58 (191 such physicians in
California); id. ¶ 114 (500 such physicians in New York).
50

51

Id. ¶¶ 27-28, 58, 128-129.

52

Id. ¶¶ 114, 116.

53

Id. ¶¶ 27, 58-59, 116, 128-129.
23

At least 7,000 physicians practicing in the United States attended
medical school in one of the six countries designated in the previous
Executive Orders (five of which remain designated in the current
Proclamation), and these physicians provide 14 million appointments a
year, 2.3 million of which are in areas with “a shortage of medical
residents and doctors.”54 When residents or physicians from the
designated countries are unable to commence or continue their
employment at public hospitals, those staffing disruptions will result in
serious risks to the quality of our States’ health care services and put the
public health of our communities at risk.55 Even before defendants made
permanent the latest version of the entry ban through issuance of the
Proclamation at issue here, researchers had concluded that the federal
government’s travel restrictions were likely to hurt the health of millions

Immigrant Doctors Project, https://immigrantdoctors.org; see also
Anna Maria Barry-Jester, Trump’s New Travel Ban Could Affect Doctors,
Especially in the Rust Belt and Appalachia, FiveThirtyEight (Mar. 6,
2017) (internet).
54

55

See Third Am. Compl. ¶¶ 27, 58-59, 116, 128.
24

of Americans who rely on physicians trained in the designated
countries.56
II.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
GRANTING THE PRELIMINARY INJUNCTION.
This Court has previously affirmed a similar preliminary injunction

issued in an earlier stage of this case challenging one of the
Proclamation’s predecessor travel bans. In IRAP v. Trump, the Court
held that preliminary relief was justified to restrain a likely violation of
the Establishment Clause that threatened substantial harm, and that
the nationwide scope of that injunction was justified by the nationwide
scope of the threatened harm. 857 F.3d at 588-606; see also Hawaii v.
Trump, 859 F.3d at 769-88 (affirming nationwide preliminary injunction
in related challenge to predecessor ban based on likelihood of success of
plaintiffs’ statutory challenge). Although that decision has been vacated
as moot, the district court did not abuse its discretion in concluding, for

See Maryam Saleh, Hospitals in Trump Country Suffer As
Muslim Doctors Denied Visas to U.S., The Intercept (Aug. 17, 2017)
(internet) (foreign physicians “take care of the sickest of the sick and the
poorest of the poor,” many have pledged to work in areas designated as
“medically underserved,” and without them “the U.S. healthcare system
would simply collapse, with the pain felt most acutely in rural areas”).
56

25

similar reasons, that preliminary relief is once again justified to enjoin
application of the disputed provisions of the Proclamation. See WV
Association of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553
F.3d 292, 298 (4th Cir. 2009) (factors to be considered include whether
plaintiff “‘is likely to suffer irreparable harm in the absence of
preliminary relief,’” and whether “‘the balance of equities tips in his
favor, [and an] injunction is in the public interest’” (quoting Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008))).
A.

Balancing the Equities and Weighing the Relative
Harms Tips Decidedly in Favor of Preliminary
Relief.

As the Supreme Court recognized during an earlier stage of this
case, “[c]rafting a preliminary injunction” is “often dependent as much on
the equities of a given case as the substance of the legal issues it
presents.” Trump v. IRAP, 137 S.Ct. 2080, 2087 (2017). Balancing the
equities requires the Court to explore the relative harms to the parties,
as well as to “pay particular regard for the public consequences.”
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); see also IRAP v.
Trump, 857 F.3d at 602 (considering balance of equities and public
interest factors together).
26

Certainly, as the district court correctly found (Opinion 84-85),
plaintiffs would be irreparably injured if the Proclamation’s disputed
provisions were permitted to go into effect, given the threat of prolonged
separation from family members and the Establishment Clause
violation.57 This Court has previously recognized that the loss of First
Amendment freedoms, including Establishment Clause violations, “‘for
even minimal periods of time, unquestionably constitutes irreparable
injury.’” IRAP v. Trump, 857 F.3d at 601-02 (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976)); see also Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 303 (D.C. Cir. 2006); cf. American Civil Liberties
Union of Ky. v. McCreary County, Ky., 354 F.3d 438, 445 (6th Cir. 2003),
aff’d, 545 U.S. 844 (2005) (presuming irreparable harm where plaintiffs
were likely to succeed on merits of Establishment Clause claim).
And in view of the widespread, particularized, and welldocumented harms that have affected—and will continue to affect—amici
States and our residents, the balance of the equities also requires that

As to the fourth factor to be considered in evaluating the propriety
of a preliminary injunction, Winter, 555 U.S. at 20, the plaintiffs have
made a strong showing of the likelihood of success on the merits of their
constitutional and statutory claims. See IRAP Br.22-25.
57

27

the district court’s injunction remain in place to serve the compelling
public interest in minimizing such irreparable harms. See IRAP v. Trump,
857 F.3d at 572 (Court noting that predecessor ban “stands to cause
irreparable harm to individuals across this nation”).
As described in Point I, implementation of the disputed provisions
of the Proclamation, like the previous versions of the travel ban, will
result in concrete and irreparable harms to amici States’ economic and
proprietary interests. In addition, these provisions will indefinitely
prevent our States’ residents from receiving visits from family
members.58 Such deprivations constitute a constitutionally cognizable
hardship to the affected United States–based persons.59 Moreover, the
exclusions at issue hinder amici States’ ability to prohibit discrimination
under their own constitutions and statutes,60 and to protect their
residents to the extent allowed under other federal laws. See Alfred L.

See Third Am. Compl. ¶¶ 24-25, 104-105 (examples of
Washington and New York residents).
58

See, e.g, Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977)
(tradition of sharing household with extended family “deserving of constitutional recognition”).
59

60

See supra p. 22.
28

Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607-08 (1982)
(recognizing State’s interests in ensuring that its residents are “not
excluded from benefits that are to flow from participation in the federal
system” and in “securing observance of the terms under which it
participates in” that system).
These are some of the very same interests that the preliminary
injunctions issued in the earlier travel ban litigation were designed to
protect, and that the Supreme Court carefully sought to avoid when
leaving certain portions of those prior injunctions in place. See Trump v.
IRAP, 137 S.Ct. at 2088 (preserving injunction as to those having “a
credible claim of a bona fide relationship with a person or entity in the
United States”). Indeed, the district court here adopted the precise
balancing previously struck by the Supreme Court when it modified those
injunctions (Opinion 86-88; Order 2).
Defendants have not articulated any reason why this same
balancing is not appropriate here, nor have they demonstrated that
lifting the injunction is necessary to prevent any irreparable harm to
their interests. Defendants’ generalized claim of harm to their interest in
maintaining national security (D.Br.53-56) is, again, abstract and
29

conclusory—unlike the concrete and particularized harms to amici States
and their residents outlined above. See IRAP v. Trump, 857 F.3d at 603
(Court “unmoved by the Government’s rote invocation of harm to
‘national security interests’ as the silver bullet that defeats all other
asserted injuries”). For example, defendants have identified no specific
urgency warranting immediate implementation of the disputed
provisions of the Proclamation, nor do they claim any disastrous result
from the injunction thus far (or any of the prior related injunctions for
that matter).
Indeed, defendants’ assertions of harm to national security
interests are substantially undermined by several factors. First, the
terms of the Proclamation itself contain internal inconsistencies that
significantly undermine the national security rationale. For instance, not
every country that failed to meet the Proclamation’s stated criteria is
included in the entry ban—and even with respect to the some of the
designated countries, not every category of travelers is presumptively
barred from entry. Second, the Proclamation itself delayed implementation of its entry ban for approximately one month, undermining
defendants’ suggestion that a short stay of the Proclamation would cause
30

irreparable harm. See § 7(a) (signed on September 24, but setting
effective date as either October 18 or October 24 for different groups of
foreign nationals). Third, as the district court correctly observed (Opinion
86), defendants’ assertions fail to account for current immigration law’s
well-established, individualized vetting process, which already permits
the exclusion of foreign nationals who present a national security concern
or for whom the United States lacks adequate information.61 As the Ninth
Circuit observed in connection with its review of an injunction enjoining
provisions of the initial travel ban, such an order “merely returned the
nation . . . to the position it has occupied for many previous years.”
Washington v. Trump, 847 F.3d at 1168.
In sum, while national security is a compelling government
interest, it “will [not] always tip the balance of the equities in favor of the
government.” IRAP v. Trump, 857 F.3d at 603. Rather, in a case like this,
the balance of the equities here tips decidedly in favor of preserving the
preliminary

injunction

because

defendants

have

identified

no

See, e.g., 8 U.S.C. § 1182(a)(3) (inadmissibility of aliens for
terrorist activities and other security grounds); id. § 1182(a)(7)
(inadmissibility of aliens who fail to meet documentation requirements).
61

31

appreciable harm that the injunction will cause to their interests, but
reversing the district court’s order would allow further irreparable harm
to be imposed on amici States and our residents. The status quo should
thus be preserved while this litigation continues.
B.

The Nationwide Scope of the Injunction Is Proper
in View of the Proclamation’s Violations and
Actual and Threatened Harms.

The preliminary injunction entered by the district court was
appropriately crafted to restrain the systemic, nationwide harm
perpetuated by the disputed provisions of the Proclamation, including
the harms to amici States. Although defendants’ claim (D.Br.56) that any
injunction here must be to limited to redressing only plaintiffs’ individual
injuries, the numerous actual and threatened harms to amici States
exemplify

the

public

interests

affected

and

underscore

the

appropriateness of the injunction’s nationwide scope.
This Court has recognized that “courts of equity may go to greater
lengths to give ‘relief in furtherance of the public interest than...when
only private interests are involved.’” East Tenn. Nat. Gas Co. v. Sage,
361 F.3d 808, 826 (4th Cir. 2004) (quoting Virginian Ry. Co. v. Railway
Employees, 300 U.S. 515, 552 (1937)); see also United States v. Oakland
32

Cannabis Buyers’ Coop., 532 U.S. 483, 496 (2001) (district courts enjoy
broad discretion “to consider the necessities of the public interest when
fashioning injunctive relief” (quotation marks omitted)).
Consistent with these principles, this Court previously found no
error in the district court’s issuance of a nationwide injunction enjoining
the previous travel ban. See IRAP v. Trump, 857 F.3d at 605. The Court
correctly recognized that the myriad harms flowing from such a ban
would not be addressed by injunctive relief limited just to plaintiffs
because that “would not cure the constitutional deficiency, which would
endure in all [of the ban’s] applications” to similarly situated individuals.
Id.; see also id. (citing Richmond Tenants Org., Inc. v. Kemp, 956 F.2d
1300, 1308-09 (4th Cir. 1992), upholding nationwide injunction “where
challenged conduct caused irreparable harm in myriad jurisdictions
across the country”). Thus, the Court concluded that “‘a nationwide
injunction was necessary to provide complete relief.’” Id. (quoting Madsen
v. Women’s Health Ctr. Inc., 512 U.S. 753, 778 (1994)). The district court
properly made the same assessment here, finding that an Establishment
Clause violation “has impacts beyond the personal interests of individual
parties” (Opinion 90).
33

Affirmance of the preliminary injunction here is also necessary to
provide continued relief to amici States from the cumulative “nationwide
effect” of defendants’ policy (id.), including the substantial disruption and
uncertainty unleashed by this entire series of discriminatory travel bans
and which now has no end in sight. The disputed provisions of the
Proclamation have not only exacerbated the harms that amici States, our
institutions, and our residents have experienced, but the current
indefinite ban may make these irreparable injuries permanent if the
preliminary injunction is vacated or narrowed in any respect.
Finally, the injunction cannot be characterized as “vastly
overbroad” (D.Br.56) given its applicability only to those individuals
having “a bona fide relationship with a person or entity in the United
States,” as explained above (supra p. 29). In sum, the district court did
not abuse its “broad discretion [in] fashioning” the injunctive relief at
issue here.62 Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010);
see also McCreary, 545 U.S. at 867 (scope of preliminary injunction is
matter within district court’s sound discretion).

For all the reasons stated above, the circumstances here would
support even the broader injunction that plaintiffs sought below.
62

34

CONCLUSION
This Court should affirm the preliminary injunction.
Dated: New York, New York
November 16, 2017
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General
State of New York
BARBARA D. UNDERWOOD
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
ZAINAB A. CHAUDHRY
Assistant Solicitor General
of Counsel
120 Broadway, 25th Floor
New York, New York 10271
[phone]
(Counsel listing continues on next page.)

35

XAVIER BECERRA
Attorney General
State of California
1300 I Street
Sacramento, CA 95814

HECTOR BALDERAS
Attorney General
State of New Mexico
408 Galisteo Street
Santa Fe, NM 87501

GEORGE JEPSEN
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106

ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court Street, N.E.
Salem, OR 97301

MATTHEW P. DENN
Attorney General
State of Delaware
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820 N. French Street
Wilmington, DE 19801

PETER F. KILMARTIN
Attorney General
State of Rhode Island
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Providence, RI 02903

LISA MADIGAN
Attorney General
State of Illinois
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Chicago, IL 60601

THOMAS J. DONOVAN, JR.
Attorney General
State of Vermont
109 State Street
Montpelier, VT 05609

THOMAS J. MILLER
Attorney General
State of Iowa
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Des Moines, IA 50319

MARK R. HERRING
Attorney General
Commonwealth of Virginia
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JANET T. MILLS
Attorney General
State of Maine
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Augusta, ME 04333

ROBERT W. FERGUSON
Attorney General
State of Washington
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Seattle, WA 98104

BRIAN E. FROSH
Attorney General
State of Maryland
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Baltimore, MD 21202

KARL A. RACINE
Attorney General
District of Columbia
441 4th Street, N.W.
Washington, DC 20001

MAURA HEALEY
Attorney General
Commonwealth of Massachusetts
One Ashburton Place
Boston, MA 02108
36

CERTIFICATE OF COMPLIANCE
Pursuant to Rules 29 and 32(a) of the Federal Rules of Appellate Procedure,
Oren L. Zeve, an employee in the Office of the Attorney General of the State
of New York, hereby certifies that according to the word count feature of the
word processing program used to prepare this brief, the brief contains 6,472
words and complies with the typeface requirements and length limits of
Rules 29 and 32(a)(5)-(7).
. /s/ Oren L. Zeve

.

CERTIFICATE OF SERVICE
I certify that on November 16, 2017 the foregoing document was served on all
parties or their counsel of record through the CM/ECF system, and all parties
or their counsel are registered CM/ECF users.
. /s/ Anisha S. Dasgupta

.