Intl. Refugee Assistance v. Donald J. Trump

Filing 94

AMICUS CURIAE BRIEF by THE CATO INSTITUTE in electronic and paper format. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194585] [17-2231, 17-2232, 17-2233, 17-2240] Cameron Russell [Entered: 11/17/2017 01:52 PM]

17-2231, 17-2232, 17-2233, 17-2240

d
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; J OHN D OES #1 & 3; J ANE D OE #2; M IDDLE E AST S TUDIES
ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself and its members;
MUHAMMED METEAB; ARAB AMERICAN ASSOCIATION OF NEW YORK, on behalf
of itself and its clients; Y EMENI -A MERICAN M ERCHANTS A SSOCIATION ;
M OHAMAD M ASHTA ; G RANNAZ A MIRJAMSHIDI ; FAKHRI Z IAOLHAGH ;
SHAPOUR SHIRANI; AFSANEH KHAZAELI; JOHN DOE #4; JOHN DOE #5,
Plaintiffs-Appellees,

—and—

ALLAN HAKKY; SAMANEH TAKALOO;
PAUL HARRISON; IBRAHIM AHMED MOHOMED,
Plaintiffs,
—v.—
DONALD J. TRUMP, in his official capacity as President of the United States;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE;
(Caption continued on inside cover)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRIEF FOR AMICUS CURIAE THE CATO INSTITUTE
IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

DANIEL BRAUN
PETER JAFFE
FRESHFIELDS BRUCKHAUS
& DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC 20005
[phone]

DAVID Y. LIVSHIZ
CAMERON C. RUSSELL
KAREN WISWALL
FRESHFIELDS BRUCKHAUS
& DERINGER US LLP
601 Lexington Avenue, 31st Floor
New York, New York 10022
[phone]

Attorneys for Amicus Curiae

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.
THE AMERICAN CENTER FOR LAW AND JUSTICE; ALABAMA; IMMIGRATION
REFORM LAW INSTITUTE; ARKANSAS; FLORIDA; LOUISIANA; OHIO;
OKLAHOMA; SOUTH CAROLINA; TEXAS; WEST VIRGINIA,
Amici Supporting Appellant.

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
17-2231
No. __________

International Refugee Assistance Project, et al. v. Trump, et al.
Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,
The Cato Institute
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
amicus
who is _______________________, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?
YES ✔ NO
If yes, identify all parent corporations, including all generations of parent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or
other publicly held entity?
YES ✔ NO
If yes, identify all such owners:

09/29/2016 SCC

-1-

YES

✔

1.

NO

4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))?
YES ✔ NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)
YES
NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?
If yes, identify any trustee and the members of any creditors’ committee:

/s/ Cameron C. Russell
Signature: ____________________________________

YES

✔

NO

11/17/2017
Date: ___________________

The Cato Institute
Counsel for: __________________________________

CERTIFICATE OF SERVICE

**************************
11/17/2017
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/ Cameron C. Russell
_______________________________
(signature)

11/17/2017
________________________
(date)
-2-

TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................... iii
INTEREST OF THE AMICUS CURIAE ................................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT .......................................2
ARGUMENT..........................................................................................................5
I. The Cato Institute’s Original Immigration Research Bears On The
Proclamation’s Basis, Which Is Material To Key Legal Questions In
This Case ..................................................................................................... 5
II. The Cato Institute’s Original Research Suggests That The
Proclamation’s Restrictions Are Inconsistent With The Government’s
Stated Basis For Those Restrictions ........................................................... 11
A. The Proclamation’s “Neutral” Criteria Do Not Actually Explain
The Government’s Selection Of Designated Countries. .................... 11
B. The Entry Ban Is Based On The False Premise That The
Government Needs The Cooperation Of Foreign Governments To
Process Visa Applications. ................................................................ 21
C. The Entry Ban Would Not Have Prevented The Entry Of Any
Terrorists Since 9/11. ........................................................................ 24
D. Nationals Of The Designated Countries Have Not Committed
Any Deadly Terrorist Attacks. .......................................................... 27
CONCLUSION .................................................................................................... 32
CERTIFICATE OF COMPLIANCE..................................................................... 33
CERTIFICATE OF SERVICE.............................................................................. 34

iii

TABLE OF AUTHORITIES
Cases

Page(s)

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ....................................................................................... 7, 9
Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ...........................................................................................9
Blackwelder v. Millman,
522 F.2d 766 (4th Cir. 1975) ..............................................................................5
Bowen v. Roy,
476 U.S. 693 (1986) ...........................................................................................6
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) .......................................................................................9
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ................................................................................... 6, 7, 8
Florida Star v. B.J.F.,
491 U.S. 524 (1989) ...........................................................................................8
Gillette v. United States,
401 U.S. 437 (1971) ...........................................................................................6
Hunter v. Underwood,
471 U.S. 222 (1985) ...........................................................................................9
Kleindienst v. Mandel,
408 U.S. 753 (1972) ................................................................................... 2, 5, 6
Larson v. Valente,
456 U.S. 228 (1982) ...........................................................................................7
McCreary Cty. v. ACLU,
545 U.S. 844 (2005) ...........................................................................................6
McGowan v. Maryland,
366 U.S. 420 (1961) ...........................................................................................7

iv

New Orleans v. Dukes,
427 U.S. 297 (1976) ...........................................................................................9
Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd.,
354 F.3d 249 (4th Cir. 2003) ............................................................................ 10
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) .......................................................................................8
W. & S. Life Ins. Co. v. State Bd. of Equalization,
451 U.S. 648 (1981) ....................................................................................... 2, 6
Statutes, Regulations, and Executive Orders and Proclamations
8 U.S.C. § 1361 .................................................................................................... 21
42 U.S.C. § 2000bb–1 .............................................................................................9
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 § 1(h) (Mar. 6, 2017) ..................... 26
Presidential Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24,
2017) ........................................................................................................passim
Other Authorities
Alex Nowrasteh and David Bier, A List of Deadly Terrorists, CATO
INSTITUTE (Nov. 16, 2017),
https://object.cato.org/sites/cato.org/files/wpcontent/uploads/cato_a_list_of_deadly_terrorists.pdf................................. 28, 29
Alex Nowrasteh, The Halloween Terror Attack in New York: The
Threat from Foreign-Born Terrorists, CATO INSTITUTE: CATO AT
LIBERTY (Oct. 31, 2017),
https://www.cato.org/blog/halloween-terror-attack-new-yorkthreat-foreign-born-terrorists ............................................................................ 27
Alex Nowrasteh, Immigration and Crime—What the Research Says,
CATO INSTITUTE: CATO AT LIBERTY (July 14, 2015),
https://www.cato.org/blog/immigration-crime-what-research-says .................. 31
Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798
CATO INSTITUTE POLICY ANALYSIS 1, 2-4 (Sept. 13, 2016),
https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf ...................... 28
v

Alex Nowrasteh, There Is No Public Safety Justification for the
“Travel Ban”, CATO INSTITUTE: CATO AT LIBERTY (Oct. 8, 2017),
https://www.cato.org/blog/there-no-public-safety-or-criminaljustification-travel-ban ..................................................................................... 30
Arshad Mohammed & Yeganeh Torbati, U.S. will not issue some
visas in 4 nations in deportation crackdown (Sept. 20, 2017),
https://www.reuters.com/article/legal-us-usa-immigration-visas/us-will-not-issue-some-visas-in-4-nations-in-deportationcrackdown-idUSKCN1BO1YR ................................................................. 14, 18
David Bier, New Travel Ban Would Not Have Prevented the Entry of
Any Terrorists Since 9/11, CATO INSTITUTE: CATO AT LIBERTY
(Sept. 25, 2017),
https://www.cato.org/blog/new-travel-ban-wouldve-preventedentry-no-terrorists-911 ............................................................................... 24, 25
David Bier, Travel Ban Is Based on Executive Whim, Not Objective
Criteria, CATO INSTITUTE: CATO AT LIBERTY (Oct. 9, 2017),
https://www.cato.org/blog/travel-ban-based-executive-whim-notobjective-criteria ........................................................................................ 17, 19
David Bier, Very Few Immigration Vetting Failures of Terrorists
Since 9/11, CATO INSTITUTE: CATO AT LIBERTY (Aug. 31, 2017),
https://www.cato.org/blog/very-few-immigration-vetting-failuresterrorists-911 .............................................................................................. 25, 26
DEP’T OF HOMELAND SEC., WRITTEN TESTIMONY OF PLCY OFFICE OF
INTERNATIONAL AFFAIRS ASSISTANT SECRETARY AND CHIEF
DIPLOMATIC OFFICER ALAN BERSIN AND CBP OFFICE OF FIELD
OPERATIONS ACTING DEPUTY ASSISTANT COMMISSIONER JOHN
WAGNER FOR A HOUSE COMMITTEE ON HOMELAND SECURITY,
SUBCOMMITTEE ON BORDER AND MARITIME SECURITY HEARING
TITLED “PASSPORT FRAUD: AN INTERNATIONAL VULNERABILITY”
(Apr. 4, 2014),
https://www.dhs.gov/news/2014/04/04/written-testimony-plcyoffice-international-affairs-and-cbp-office-field-operations ............................. 17
First Cross-Appeal Brief for Appellants .........................................................passim

vi

International Civil Aviation Organization, ICAO PKD Participants,
https://icao.int/Security/FAL/PKD/Pages/ICAOPKDParticipants.aspx ...................................................................................... 19
INTERPOL, Stolen and Lost Travel Documents database,
https://www.interpol.int/INTERPOL-expertise/Bordermanagement/SLTD-Database .......................................................................... 17
Mark Berman & Matt Zapotosky, Investigators probe New York
attack suspect’s communications while Trump calls for death
penalty, WASH. POST (Nov. 2, 2017),
https://www.washingtonpost.com/news/postnation/wp/2017/11/02/investigators-probe-new-york-attacksuspects-communications-while-trump-calls-for-death-penalty ....................... 25
Michelangelo Landgrave & Alex Nowrasteh, Criminal Immigrants:
Their Numbers, Demographics, and Countries of Origin, CATO
INSTITUTE: IMMIGR. RES. & POL’Y BRIEF 1 (Mar. 15, 2017),
https://www.cato.org/publications/immigration-reformbulletin/criminal-immigrants-their-numbers-demographicscountries .......................................................................................................... 31
Pat St. Claire, Greg Botelho & Ralph Ellis, San Bernadino shooter
Tashfeen Malik: Who was she?, CNN (Dec. 8, 2015),
http://www.cnn.com/2015/12/06/us/san-bernardino-shootertashfeen-malik/index.html ................................................................................ 26
U.S. Census Bureau’s American Community Survey, available at
https://www.census.gov/programs-surveys/acs/data/summaryfile.2015.html................................................................................................... 30
U.S. DEP’T OF HOMELAND SEC., DHS ANNOUNCES IMPLEMENTATION
OF VISA SANCTIONS ON FOUR COUNTRIES (Sept. 13, 2017),
https://www.dhs.gov/news/2017/09/13/dhs-announcesimplementation-visa-sanctions-four-countries ........................................... 15, 18
U.S. DEP’T OF STATE, CALCULATION OF THE ADJUSTED VISA REFUSAL
RATE FOR TOURIST AND BUSINESS TRAVELERS UNDER THE
GUIDELINES OF THE VISA WAIVER PROGRAM,
https://travel.state.gov/content/dam/visas/Statistics/NonImmigrant-Statistics/refusalratelanguage.pdf ............................................. 22, 23

vii

U.S. DEP’T OF STATE, COUNTRY REPORTS ON TERRORISM 2016 (July
2017),
https://www.state.gov/documents/organization/272488.pdf ........... 13, 14, 18, 20
U.S. DEP’T OF STATE, NONIMMIGRANT VISA STATISTICS:
NONIMMIGRANT VISA ISSUANCE BY VISA CLASS AND NATIONALITY,
https://travel.state.gov/content/visas/en/law-andpolicy/statistics/non-immigrant-visas.html ....................................................... 26
U.S. DEP’T OF STATE, REPORT OF THE VISA OFFICE 2006: TABLE XIV,
https://travel.state.gov/content/dam/visas/Statistics/FY06AnnualRe
portTableXIV.pdf ............................................................................................ 26
U.S. DEP’T OF STATE, REPORT OF THE VISA OFFICE 2016: TABLE XIV,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/
FY2016AnnualReport/FY16AnnualReport-TableXIV.pdf............................... 25
U.S. DEP’T OF STATE, Visitor Visa,
https://travel.state.gov/content/visas/en/visit/visitor.html ................................. 22

viii

INTEREST OF THE AMICUS CURIAE
The Cato Institute (Cato) is a nonpartisan public policy research foundation
dedicated to advancing the principles of individual liberty, free markets, and
limited government. The Cato Institute believes that those values depend on
holding government to rigorous standards of evidence and justification for its
actions. Toward those ends, Cato conducts conferences, publishes books and
studies, and issues the annual Cato Supreme Court Review.
The Cato Institute and its scholars have significant experience studying
immigration law and policy in the United States. The Cato Institute therefore
believes that it can assist the Court by providing evidence relevant to Presidential
Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) (the Proclamation)
and its ban on the entry of certain foreign nationals (Entry Ban).1

1

No counsel for a party authored this brief in whole or in part, and no such
counsel or a party contributed money that was intended to fund preparing or
submitting this brief. No person other than the amicus curiae, its members, or its
counsel contributed money that was intended to fund preparing or submitting the
brief. See Fed. R. App. P. 29(a)(4)(E). The parties have, through counsel,
consented to the filing of this brief.
1

INTRODUCTION AND SUMMARY OF ARGUMENT
The government claims that the current Presidential Proclamation—now the
government’s third attempt at a ban on the entry of certain categories of persons—
will help prevent terrorist attacks in the United States. Amicus respectfully
disagrees. Cato’s original research shows that this justification does not withstand
scrutiny.
As a procedural matter, the Court may consider real-world evidence about
the Proclamation’s stated justifications and effects. Each is part of the prevailing
legal tests governing the claims here. Even under the government’s view that
Kleindienst v. Mandel, 408 U.S. 753 (1972), governs this Court’s assessment of
Plaintiffs’ challenges to the Proclamation, a court entertaining an Establishment
Clause challenge to an exclusion order should probe whether there is a “bona fide
reason” for the exclusion. First Cross-Appeal Br. for Appellants at 40 (quoting
Mandel, 408 U.S. at 770). The government also agrees that courts should consider
whether the government rationally could have believed in the purposes for the
exclusion. See First Cross-Appeal Br. for Appellants at 41 (citing W. & S. Life Ins.
Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72 (1981)). And to the extent
that the Court reaches the substance of the challenges, the threshold inquiries for
Establishment Clause, Equal Protection Clause, and Religious Freedom
Restoration Act (RFRA) challenges to government actions require courts to decide

2

whether those actions are motivated by a sincere permissible purpose. If
government actions fail that threshold inquiry, then prevailing doctrine requires
courts to subject the actions to heightened scrutiny, which requires courts to
consider evidence about whether the actions are appropriate means to advance the
government’s interests. In short, the government bears an initial burden of showing
that its action reflects a sincerely held, rational, and permissible basis. (See Part I.)
Cato’s original research belies the government’s stated justifications. The
Proclamation’s Entry Ban denies visas to nationals of six Muslim-majority
countries (Chad, Iran, Libya, Somalia, Syria, and Yemen), as well as all nationals
of North Korea and some government officials from Venezuela (the Designated
Countries). The Proclamation asserts that this Entry Ban is necessary because
certain governments fail to share sufficient information to allow consular officials
to vet nationals of those countries before entry. The Proclamation also claims that
the government arrived at this list by applying certain stated criteria for inclusion
and exclusion. Yet consular officers already deny—as the law requires—all
applicants that fail to prove their eligibility. And the Proclamation’s application of
the requirements is facially inconsistent: it fails to apply its stated requirements to
the Designated Countries, and ignores dozens of other countries that fail them.
Further, the Proclamation’s assertion that the failures of the Designated Countries
have made their nationals more dangerous than others is also without basis. The

3

Entry Ban would not have prevented the entry of any terrorism offender since 9/11
(and, of course, the 9/11 hijackers were not nationals of the Designated Countries),
and not a single person from these countries has killed anyone in a terrorist attack
in the United States in over four decades. They are also much less likely to commit
other serious crimes than U.S.-born persons or other foreign nationals.

4

ARGUMENT
I.

THE CATO INSTITUTE’S ORIGINAL IMMIGRATION RESEARCH
BEARS ON THE PROCLAMATION’S BASIS, WHICH IS MATERIAL
TO KEY LEGAL QUESTIONS IN THIS CASE
The Court should consider evidence of the Proclamation’s actual purpose

and effects because the legal tests in this case require it. The various plaintiffs in
this case challenging the Proclamation under the Establishment Clause, Equal
Protection Clause, and RFRA have successfully enjoined the Proclamation.2 The
prevailing doctrines governing these claims and remedies differ, of course, but they
share one thing in common: they require courts to consider real-world evidence
about some combination of the purposes, operation, or effects of the government
actions being challenged.3
Even under the government’s view that Mandel governs this Court’s
assessment of Plaintiffs’ challenges to the Proclamation, that case would require
the Court to probe whether there is a “bona fide reason” for the exclusion (First
Cross-Appeal Br. for Appellants at 40 (quoting Mandel, 408 U.S. at 770)) and to
consider whether the government rationally could have believed in the purposes for

2

Although the trial court enjoined the Proclamation based on statutory and
Establishment Clause grounds and therefore did not reach equal protection or
RFRA arguments, those arguments remain relevant because the Court may affirm
the decision below on any ground in the record. Blackwelder v. Millman, 522 F.2d
766, 771 (4th Cir. 1975).
3
The Cato Institute takes no ultimate position on whether the present case
triggers the doctrines above, or whether the prevailing doctrinal tests are correct.
5

the exclusion (see id. at 41 (citing W. & S. Life, 451 U.S. at 671-72)). Thus, even
under that deferential standard of review, the Court still must determine whether
the government’s stated reason for its action may be credited.
A court applying prevailing Establishment Clause doctrine to a challenged
government action must evaluate the authenticity of the government’s articulated
secular purpose. The Establishment Clause “‘forbids subtle departures from
neutrality,’ and ‘covert suppression of particular religious beliefs,’” even in
facially neutral laws. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 534 (1993) (citations omitted) (quoting Gillette v. United States, 401
U.S. 437, 452 (1971) and Bowen v. Roy, 476 U.S. 693, 703 (1986) (opinion of
Burger, C.J.)). Courts applying the prevailing Establishment Clause test therefore
must evaluate evidence about whether a government measure is motivated by a
“secular purpose” that is “genuine, not a sham, and not merely secondary to a
religious objective.” McCreary Cty. v. ACLU, 545 U.S. 844, 864 (2005).
Moreover, courts probe the real purpose of state action by considering the
operation of the government action, as “the effect of a law in its real operation is
strong evidence of its object.” Church of Lukumi Babalu Aye, 508 U.S. at 535. And
when the “openly available data support[s] a commonsense conclusion that a
religious objective permeated the government’s action,” such action is
impermissible. McCreary Cty., 545 U.S. at 863.

6

Here, the government justifies the Proclamation by asserting the need to
“protect [U.S.] citizens from terrorist attacks and other public-safety threats” by
detecting “foreign nationals who may commit, aid, or support acts of terrorism, or
otherwise pose a safety threat” and preventing “such individuals from entering the
United States.” Proclamation § 1(a). Cato’s research, as set forth below, belies that
claim. That evidence therefore bears on the Establishment Clause analysis.
Moreover, the Supreme Court has held that government actions that
discriminate among religions require application of strict scrutiny. Larson v.
Valente, 456 U.S. 228, 246 (1982). Strict scrutiny requires consideration of
whether government action furthers a compelling government interest and whether
the action is narrowly tailored to that interest. Id. at 246-47; see also Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Critical to the inquiry is
whether the government action “visits ‘gratuitous restrictions’” that are
unwarranted by the government’s claimed interest. Church of Lukumi Babalu Aye,
508 U.S. at 538 (quoting McGowan v. Maryland, 366 U.S. 420, 520 (1961)
(opinion of Frankfurter, J.)). Where government action imposes such overinclusive
restrictions, “[i]t is not unreasonable to infer, at least when there are no persuasive
indications to the contrary, that [such] a law . . . seeks not to effectuate the stated
governmental interests,” but rather to advance impermissible purposes. Id.; see
also Larson, 456 U.S. at 248 (“Appellants must demonstrate that the

7

challenged . . . rule is closely fitted to further the interest that it assertedly
serves.”). On the other hand, when a government action is materially
underinclusive by failing to restrict activities “that endanger[] [the government’s]
interests in a similar or greater degree than” those activities that the action does
restrict, the government undermines its claim that it is pursuing a compelling
interest and raises the specter that the government is using its stated objective to
pursue prohibited discrimination. Church of Lukumi Babalu Aye, 508 U.S. at 543.
To assess whether a government action’s purported purpose is genuine, both law
and common sense require courts to consider the extent to which the government
has failed to take less-restrictive actions that would further its purpose. See, e.g., id.
at 547 (“[A] law cannot be regarded as protecting an interest ‘of the highest
order’ . . . when it leaves appreciable damage to that supposedly vital interest
unprohibited.”) (quoting Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989)
(Scalia, J. concurring in part and concurring in judgment)); Florida Star, 491 U.S.
at 540 (“[T]he facial underinclusiveness of [the statute] raises serious doubts about
whether Florida is, in fact, serving, with this statute, the significant interests which
appellee invokes in support of [the statute].”); Reed v. Town of Gilbert, 135 S. Ct.
2218, 2232 (2015) (holding a law limiting signage as impermissible under the First
Amendment because it left other threats to the town’s asserted interests
unprohibited).

8

The evidence presented by Cato in Part II demonstrates a complete
disconnect between the stated purpose of the Proclamation and its actual operation
and effects, and therefore bears on precisely these issues. In particular, Part II.A
shows that the Proclamation is internally inconsistent: the criteria used to designate
countries are not those criteria on which it purports to rely. Parts II.B to II.D show
that Entry Ban is based on a false premise, would not have prevented the entry into
the U.S. of any terrorists since 9/11, and that nationals from the countries affected
by the Proclamation have not committed any deadly terrorist acts on U.S. soil.
Similar doctrines apply, with variations not relevant here, to the Equal
Protection and RFRA challenges to the Proclamation. See Adarand Constructors,
515 U.S. at 227 (as to equal protection under the Fifth Amendment); 42 U.S.C. §
2000bb–1; Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014) (as
to RFRA). RFRA governs actions that place burdens on the exercise of religion, 42
U.S.C. § 2000bb–1; the Equal Protection doctrine governs government action that
draws distinctions based on suspect classifications such as race, religion, or
alienage, see New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Where such
distinctions exist, a court may engage in “a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.” Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977); see also Hunter v.
Underwood, 471 U.S. 222, 227-28 (1985).

9

If, at the end of its analysis, the Court concludes that the District Court did
not abuse its discretion in finding that one or more of the challenges brought
against the Proclamation is likely to succeed, then it will need to review the
appropriateness of the injunction ordered by the District Court,4 and that too will
require the Court to consider real-world evidence about the Proclamation’s
purposes and effects. To obtain the injunction, IRAP and its co-plaintiffs had to
show, among other things, that enjoining the Proclamation would not harm the
public interest—the fourth prong of the test for an injunction. Newsom ex rel.
Newsom, 354 F.3d at 261. Evidence of whether the Entry Ban reduces the risk of
terrorist attack would be directly relevant to the government’s argument that the
public interest is “significantly impaired by barring effectuation of a judgment of
the President that restricting entry for certain nationals of eight countries is
warranted to protect the Nation’s safety.” First Cross-Appeal Br. for Appellants
at 3.

4

In that case, the Court would review for abuse of discretion. Newsom ex rel.
Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 254 (4th Cir. 2003).
10

II. THE CATO INSTITUTE’S ORIGINAL RESEARCH SUGGESTS
THAT
THE
PROCLAMATION’S
RESTRICTIONS
ARE
INCONSISTENT WITH THE GOVERNMENT’S STATED BASIS FOR
THOSE RESTRICTIONS
A. The Proclamation’s “Neutral” Criteria Do Not Actually Explain The
Government’s Selection Of Designated Countries.
The government asserts that the Proclamation safeguards the United States
against terrorism by placing entry and immigration restrictions on nationals of
certain designated countries. The government’s stated basis for designating those
countries is a set of “baseline” criteria (the Baseline Criteria) against which the
Department of Homeland Security (DHS) measured “all foreign governments.”
Proclamation § 1(d). Countries that fail the Baseline Criteria were supposedly
added to the list. The government describes the Baseline Criteria as “neutral
criteria against which all nations were assessed.” First Cross-Appeal Br. for
Appellants at 40. The facts stated in the Proclamation do not support—and to the
contrary, affirmatively belie—this stated basis for the Proclamation’s restrictions.
According to the Proclamation, the Baseline Criteria were split into three
categories:
1. Identity-management information, i.e., “whether the country issues
electronic passports embedded with data to enable confirmation of
identity [Criterion 1], reports lost and stolen passports to appropriate
entities [Criterion 2], and makes available upon request identity-related

11

information not included in its passports [Criterion 3].” Proclamation
§ 1(c)(i).
2. National security and public-safety information, i.e., “whether the
country makes available, directly or indirectly, known or suspected
terrorist and criminal-history information upon request [Criterion 4],
whether the country provides passport and national-identity document
exemplars [Criterion 5], and whether the country impedes the United
States Government’s receipt of information about passengers and crew
traveling to the United States [Criterion 6].” Proclamation § 1(c)(ii).
3. National security and public-safety risk assessment, i.e., “whether the
country is a known or potential terrorist safe haven [Criterion 7], whether
it is a participant in the Visa Waiver Program [Criterion 8] . . . and
whether it regularly fails to receive its nationals subject to final orders of
removal from the United States [Criterion 9].” Proclamation § 1(c)(iii).
These Baseline Criteria, however, do not explain the government’s design of
the Designated Countries list. The government included countries on the list
despite them passing the government’s Baseline Criteria. (See subpart 1.) On the
flip side, the government failed to designate many countries that fail the
government’s Baseline Criteria. (See subpart 2.)

12

1.

The Government Included Countries That, Under Its Stated
Criteria, Should Not Have Been Designated.

The government’s Baseline Criteria prove too little: they do not explain the
inclusion of most countries actually included in the Entry Ban. The criteria cannot,
therefore, be considered the real reason for the ban on nationals of those countries.
a) Chad is included on the list in part because “several terrorist groups are
active within Chad or in the surrounding region.” Proclamation § 2(a)(i).
However, the Baseline Criteria do not include “terrorist groups . . . in the
surrounding region” as a criterion. Rather, under Criterion 7, a country
must be a “known or potential terrorist safe haven.” Proclamation
§ 1(c)(iii). The Department of State acknowledges that Chad is not a
terrorist safe haven, nor has it ever been one; 5 yet it is included among
the Designated Countries.
b) Iran and Syria are included on the list of Designated Countries in part
because they are “the source of significant terrorist threats, and [are] state
sponsor[s] of terrorism.” Proclamation §§ 2(b), (e). However, no criterion
asks whether a county is a “source of significant terrorist threats.” In
addition, being a state sponsor of terrorism is not a Baseline criterion

5

U.S. DEP’T OF STATE, COUNTRY REPORTS ON TERRORISM 2016 313-322 (July
2017), https://www.state.gov/documents/organization/272488.pdf (listing terrorist
safe havens, but not including Chad) (Dep’t of State, 2016 Terrorism Report).
13

despite being applied to both Iran and Syria. If it were a criterion Sudan
would be a necessary addition to the list of Designated Countries.6
c) The Proclamation faults Libya and Venezuela for not being “fully”
cooperative with respect to Criterion 9, concerning accepting deportees
from the United States. Proclamation §§ 2(c), (f). However, the reported
standard under the Baseline Criteria asks not whether each country is
“fully” cooperative, but “whether [each country] regularly fails to receive
its nationals subject to final orders of removal from the United States.”
Proclamation § 1(c)(iii) (emphasis added). As of July 2017, neither Libya
nor Venezuela were on the Immigration and Customs Enforcement
agency’s (ICE) list of countries that are “recalcitrant” in accepting
deportees from the U.S.7 Of the Designated Countries, ICE only found
Iran to be “recalcitrant,”8 but no Designated Country including Iran was
deemed a severe enough violator to be included in the sanctions applied
by DHS in September 2017 (just days before the Presidential
Proclamation) to four other countries for failure to accept U.S.
6

Dep’t of State, 2016 Terrorism Report at 303-06.
Arshad Mohammed & Yeganeh Torbati, U.S. will not issue some visas in 4
nations
in
deportation
crackdown
(Sept.
20,
2017),
https://www.reuters.com/article/legal-us-usa-immigration-visas/u-s-will-not-issuesome-visas-in-4-nations-in-deportation-crackdown-idUSKCN1BO1YR
(Mohammed & Torbati, Deportation Crackdown).
8
Id.
7

14

deportees.9 Here too it is inescapable that the Baseline Criteria as
described in section 1 of the Proclamation do not provide a basis for the
justifications enumerated in section 2.
It is clear, therefore, that based on the Proclamation’s own terms, the
inclusion of at least five of the seven countries that were “inadequate” under the
Baseline Criteria (Chad, Iran, Libya, Syria, and Venezuela) are not explained by
the standards described in the Proclamation itself. 10
Indeed, the Proclamation also includes Somalia as a Designated Country
despite not being “inadequate” under the Baseline Criteria, and here the
government is upfront that the stated criteria do not explain its designs.
Proclamation §§ 1(i), 2(h). Although Somalia issues an electronic passport—and
therefore passes Criterion 1—the Proclamation includes it as a Designated Country
in part because “the United States and many other countries do not recognize” its

9

U.S. DEP’T

HOMELAND SEC., DHS ANNOUNCES IMPLEMENTATION OF VISA
SANCTIONS
ON
FOUR
COUNTRIES
(Sept.
13,
2017),
https://www.dhs.gov/news/2017/09/13/dhs-announces-implementation-visasanctions-four-countries (Dep’t of Homeland Sec., Visa Sanctions).
10
Although the Proclamation states that the President considered other factors,
such as “each country’s capacity, ability, and willingness to cooperate with [U.S.]
identity-management and information-sharing policies . . . whether [each country]
has a significant terrorist presence within its territory [and] foreign policy, national
security, and counterterrorism goals,” Proclamation § 1(h)(i), these were explicitly
not the criteria relied on in the initial selection of the Designated Countries by the
Secretary of Homeland Security. See Proclamation § 1(c). In addition, these factors
did not alter the final choice of Designated Countries. See Proclamation §§ 1(g)-(i).
OF

15

passport. Proclamation § 2(h). This more stringent requirement is not the Baseline
standard under Criterion 1. In addition, although Somalia “satisfies the
information-sharing requirements of the baseline,” its “lack of territorial control
. . . compromises Somalia’s ability . . . to share.” Id. In other words, Somalia was
held to a different standard than other countries: although it shares what it can, it
cannot collect the information that the United States wants. The Proclamation
alters the standard for being included in the list of Designated Countries
specifically to include Somalia.
Accordingly, the Proclamation’s stated criteria do not ultimately explain
which countries became the Designated Countries.
2.

The Government Omitted Countries That, Under Its Stated
Criteria, Should Have Been Designated.

The Proclamation’s Baseline Criteria also prove too much: the Proclamation
omits a large number of countries from the banned list despite those countries
failing one or more Baseline Criteria. Iraq is explicitly said to have failed the
Criteria, but nonetheless was not included on the Designated Countries list.
Proclamation § 1(g). But Iraq is not alone:

16

a) Criterion 1. In 2017, 86 countries failed the requirement to use electronic
passports, and many other countries allow their nationals to travel under
older non-electronic passports.11
b) Criterion 2. At least 16 countries never report lost and stolen passport
information,12 and DHS has warned that, outside Canada and Europe, an
“alarming number of countries . . . report very little.”13 Indeed, three of
the four most populous countries in the world—China, India, and
Indonesia—rarely or never reported this data.14

11

David Bier, Travel Ban Is Based on Executive Whim, Not Objective Criteria,
CATO
INSTITUTE:
CATO
AT
LIBERTY
(Oct.
9,
2017),
https://www.cato.org/blog/travel-ban-based-executive-whim-not-objective-criteria
(Bier, Executive Whim).
12
See DEP’T OF HOMELAND SEC., WRITTEN TESTIMONY OF PLCY OFFICE OF
INTERNATIONAL AFFAIRS ASSISTANT SECRETARY AND CHIEF DIPLOMATIC OFFICER
ALAN BERSIN AND CBP OFFICE OF FIELD OPERATIONS ACTING DEPUTY ASSISTANT
COMMISSIONER JOHN WAGNER FOR A HOUSE COMMITTEE ON HOMELAND SECURITY,
SUBCOMMITTEE ON BORDER AND MARITIME SECURITY HEARING TITLED “PASSPORT
FRAUD:
AN
INTERNATIONAL
VULNERABILITY”
(Apr.
4,
2014),
https://www.dhs.gov/news/2014/04/04/written-testimony-plcy-office-internationalaffairs-and-cbp-office-field-operations (Bersin Testimony) (showing that the U.S.
relies on INTERPOL’s Stolen and Lost Travel Documents (SLTD) database, and
that Interpol has 190 member countries); INTERPOL, Stolen and Lost Travel
Documents
database,
https://www.interpol.int/INTERPOL-expertise/Bordermanagement/SLTD-Database (showing that the SLTD database is populated by
only 174 countries) (last visited Nov. 13, 2017).
13
Bersin Testimony.
14
Id.
17

c) Criterion 7. In 2017, the State Department identified 13 terrorist safe
havens—the focus of Criterion 7—but nine of these did not end up as
Designated Countries.15
d) Criterion 9. Criterion 9 is meant to address countries that regularly refuse
to accept U.S. deportees. However, although ICE maintains a list of
counties which are “recalcitrant” in receiving deportees from the U.S.,
only one country (Iran) out of the 12 countries identified in ICE’s latest
July 2017 report became a Designated Country.16 Moreover, in
September 2017, the United States sanctioned four countries for refusing
to accept deportees, but, again, none became Designated Countries.17
In short, if the government were really applying the Baseline Criteria
neutrally and objectively, it would have had to include a far greater number of
countries on the Designated Countries list than it did.18 The only explanations are

15

See Dep’t of State, 2016 Terrorism Report at 313-22.
Those countries are China, Cuba, Vietnam, Laos, Iran, Cambodia, Burma,
Morocco, Hong Kong, South Sudan, Guinea and Eritrea. Mohammed & Torbati,
Deportation Crackdown.
17
Those countries were Cambodia, Eritrea, Guinea, and Sierra Leone. Dep’t of
Homeland Sec., Visa Sanctions.
18
The Proclamation actually states that sixteen countries were found to be
“inadequate” when assessed against these Baseline Criteria. However, after several
countries provided passport exemplars or agreed to share information on known or
suspected terrorists, the Secretary of Homeland Security ultimately recommended
to the President—and the President agreed—that only seven of these countries be
included on the list of Designated Countries. Proclamation §§ 1(e)-(h). Those
16

18

that the government did not actually design the Designated Countries list based on
the Baseline Criteria, or did not apply the Baseline Criteria neutrally.
The government’s failure to include many countries on the ban list is even
less rational if one considers not the government’s stated criteria, but the actual
criteria that it applied to exclude Iran, Syria, Chad, and Somalia. For example:
a) The government included Somalia as a Designated Country in part
because many “countries do not recognize” its electronic passport.
Proclamation § 2(h)(i). But if the government applied this criterion
consistently, it would have to add another 39 countries that issue
electronic passports that do not conform to the international standards
recognized by the United States (in addition to the 86 countries that issue
no electronic passport at all).19
b) Somalia was also added to the Designated Countries list in part because it
lacks “territorial control.” Proclamation § 2(h)(i). If the government were
passport exemplars and agreements in no way address whether those otherwise
“inadequate” countries still fail to use electronic passports, report lost or stolen
passport information, provide safe havens for terrorists, or regularly refuse to
accept deportees from the U.S.
19
Bier, Executive Whim (noting that 86 countries fail to use electronic passports,
and that 125 do not use electronic passports or use electronic passports that many
countries do not recognize, and citing the International Civil Aviation
Organization’s (ICAO) list of countries conforming to the Public Key Directory
(PKD)
standards
for
passports,
ICAO
PKD
Participants,
https://icao.int/Security/FAL/PKD/Pages/ICAO-PKDParticipants.aspx)
(last
visited Nov. 13, 2017).
19

to consistently apply this unstated “territorial control” criterion the
number of Designated Countries would increase by at least nine.20
c) The government included Iran and Syria in part because they are state
sponsors of terrorism. Proclamation §§ 2(b), (e). But if the government
applied this actual criteria consistently, it would have to include Sudan,
too, which it did not.21
d) The government included Chad in part because terrorists are “active
within [the country] or the surrounding region.” Proclamation § 2(a).
However, there are more than 30 other countries that similarly have U.S.designated Foreign Terrorist Organizations operating inside their borders
but which are not Designated Countries, including countries such as
France, India, Spain, and the United Kingdom.22
In short, the consistent application of the government’s criteria—whether the
government’s stated criteria or the actual criteria that the government applied—
should have produced a very different list of Designated Countries. These criteria
cannot, therefore, explain the government’s selection of nationals to exclude from
20

This number is calculated by counting the thirteen State Department designated
terrorist safe havens, and subtracting those countries already included among the
Designated Countries (Libya, Somalia, Venezuela, and Yemen). See Dep’t of
State, 2016 Terrorism Report at 313-22 (defining “terrorist safe haven” to include
countries with “ungoverned, under-governed, or ill-governed physical areas”).
21
See Dep’t of State, 2016 Terrorism Report at 303-06.
22
Id. at 381-444 (listing terrorist groups and where they operate).
20

entry. Because the Baseline was not applied, the Proclamation’s purpose cannot be,
as the government claims, to “encourage cooperation” with it. First Cross-Appeal
Br. for Appellants at 10. This inconsistency belies the government’s purported
rationale.
B. The Entry Ban Is Based On The False Premise That The
Government Needs The Cooperation Of Foreign Governments To
Process Visa Applications.
The Entry Ban resulted from a report by the DHS of what “additional
information will be needed from each foreign country to adjudicate an
application.” Proclamation § 1(c). The resulting report concluded that the Entry
Ban is required because the government is not able “to confirm the identity of
individuals seeking entry” from certain countries. Id. But it is applicants, and not
the government, who bear the burden to produce information showing their
eligibility for a visa. The government has no obligation to obtain this information
on its own, and may exclude any individual who fails to meet this burden. 8 U.S.C.
§ 1361. The government makes no assertion that consular officers are not
enforcing this burden of proof. Publicly available evidence indicates that they do
enforce this law and have reacted to the changing conditions in each of the
Designated Countries on an individualized basis. For the past seven years, the B
visa refusal rate (the share of applicants denied a business and/or tourism visitor

21

visa for any reason) for the Designated Countries has been an average of 61
percent higher than for all other nationalities.23

23

U.S. DEP’T OF STATE, CALCULATION OF THE ADJUSTED VISA REFUSAL RATE FOR
TOURIST AND BUSINESS TRAVELERS UNDER THE GUIDELINES OF THE VISA WAIVER
PROGRAM,
https://travel.state.gov/content/dam/visas/Statistics/Non-ImmigrantStatistics/refusalratelanguage.pdf (Dep’t of State, Visa Refusal Rate) (last visited
Nov.
3,
2017);
U.S.
DEP’T
OF
STATE,
Visitor
Visa,
https://travel.state.gov/content/visas/en/visit/visitor.html (last visited Nov. 3,
2017).
22

Table 1: B Visa Refusal Rate (% of Applicants) by Country24
Country

2010

2011

2012

2013

2014

2015

2016

Somalia

70

67

62

66

52

65

64

Syria

28

33

42

46

60

63

60

Yemen

54

48

48

44

44

54

49

Iran

39

31

38

48

42

39

45

Chad

59

43

44

36

32

34

43

Libya

14

31

39

34

34

43

41

Venezuela

18

16

12

14

15

16

40

North
Korea

23

8

36

29

56

48

15

Average25

38

35

40

40

42

45

44

All other
countries26

26

25

24

25

25

26

27

These denial rates reflect in part the existing availability of documentary
evidence from visa applicants. While the average visa denial rate for all other
countries has remained relatively constant in recent years, the average denial rate
24

Dep’t of State, Visa Refusal Rate.
Average based on the simple arithmetic mean of the data for the eight countries
shown in the table and not weighted by number of applicants.
26
Average based on the arithmetic mean of the data for all countries, excluding the
eight shown in the table; data includes stateless persons.
25

23

of the eight Designated Countries increased from approximately 38% to 44%
between 2010 and 2016—a rate increase of 16%. In particular, the conflicts in
Libya and Syria coincided with refusal rates that more than doubled. See supra
Table 1. These rejections demonstrate that consular officers can respond to
changing circumstances without a blanket ban and that they do enforce applicants’
burden of proof.
C. The Entry Ban Would Not Have Prevented The Entry Of Any
Terrorists Since 9/11.
The Proclamation claims that individualized “vetting is less reliable when
the country from which someone seeks to emigrate exhibits significant gaps in its
identity-management or information-sharing policies, or presents risks to the
national security of the United States.” Proclamation § 1(h)(ii). Yet the government
provides no evidence that these “gaps”—however defined—have, in fact, made
individualized vetting from these countries less reliable.
The Entry Ban would not have prevented the entry of any terrorist who
received a visa since 9/11 and who was convicted of, or killed during, a plot to
carry out an attack in the United States.27 This is not a surprise because very few

27

David Bier, New Travel Ban Would Not Have Prevented the Entry of Any
Terrorists Since 9/11, CATO INSTITUTE: CATO AT LIBERTY (Sept. 25, 2017),
https://www.cato.org/blog/new-travel-ban-wouldve-prevented-entry-no-terrorists911 (Bier, Terrorists Since 9/11) (reporting findings based on a review of the
terrorist information provided by the Department of Justice National Security
Division, the Department of Justice website, the George Washington University
24

terrorists have entered the United States since 9/11. Since October 2001—when
Congress began to revamp the individualized vetting system—only seven foreignborn persons entered the United States on immigrant or nonimmigrant visas and
went on to be convicted of or killed during a terrorist attack on U.S. soil.28 None of
the six nationalities that these attackers represent are subject to the Entry Ban.29
At most six of these offenders radicalized prior to entry,30 meaning that—at
worst—consular officers failed to identify one terrorist out of every 19.3 million
visa approvals during fiscal years 2002 to 2016.31 The only offender who
Program on Extremism, and the New America Foundation International Security
Program). The 9/11 hijackers themselves were not nationals of the Designated
Countries.
28
David Bier, Very Few Immigration Vetting Failures of Terrorists Since 9/11,
CATO
INSTITUTE:
CATO
AT
LIBERTY
(Aug.
31,
2017),
https://www.cato.org/blog/very-few-immigration-vetting-failures-terrorists-911
(Bier, Few Vetting Failures) (last updated Nov. 13, 2017). This includes selfadmitted terrorist Sayfullo Saipov, who was injured while killing eight people in
New York City in October 2017.
29
Id. (the seven individuals were: Umar Abdulmatallab (Nigeria), Khalid
Aldawsari (Saudi Arabia), Tashfeen Malik (Pakistan), Ulugbek Kodirov
(Uzbekistan), Quazi Nafis (Bangladesh), Hosam Smadi (Jordan), and Sayfullo
Saipov (Uzbekistan)).
30
Bier, Terrorists Since 9/11; Mark Berman & Matt Zapotosky, Investigators
probe New York attack suspect’s communications while Trump calls for death
penalty, WASH. POST (Nov. 2, 2017), https://www.washingtonpost.com/news/postnation/wp/2017/11/02/investigators-probe-new-york-attack-suspectscommunications-while-trump-calls-for-death-penalty (showing that, according to
U.S. government officials, the October 31, 2017 New York City truck attacker
radicalized after entering the United States in response to Islamic State
propaganda).
31
U.S. DEP’T OF STATE, REPORT OF THE VISA OFFICE 2016: TABLE XIV,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016Annual
25

radicalized prior to entry and killed anyone on U.S. soil was a Pakistani national,
Tashfeen Malik.32 In other words, one vetting failure that led to deaths in the
United States occurred in over 116 million visa approvals from 2002 to 2016.33
Neither Pakistan nor any of the other nationalities represented by attackers who
radicalized prior to entry are subject to the Entry Ban.34
Although the past is not necessarily prologue, the government provides no
evidence of new threats from these nationals. Indeed, the Proclamation states that it
did not select Designated Countries based on intelligence regarding future plans to
conduct attacks inside the United States, but rather factors related to identity and
information sharing procedures (and, in some cases, terrorist activity inside or near
the country of origin). Proclamation § 2. Moreover, the president justified his order
to carry out the study that led to the Entry Ban with evidence relating exclusively
to past terrorist infiltrations. Exec. Order No. 13,780, 82 Fed. Reg. 13,209 § 1(h)
Report/FY16AnnualReport-TableXIV.pdf (last visited Nov. 13, 2017); U.S. DEP’T
OF
STATE, REPORT OF THE VISA OFFICE 2006: TABLE XIV,
https://travel.state.gov/content/dam/visas/Statistics/FY06AnnualReportTableXIV.p
df (last visited Nov. 13, 2017); U.S. DEP’T OF STATE, NONIMMIGRANT VISA
STATISTICS: NONIMMIGRANT VISA ISSUANCE BY VISA CLASS AND NATIONALITY,
https://travel.state.gov/content/visas/en/law-and-policy/statistics/non-immigrantvisas.html (data file) (last visited Nov. 13, 2017).
32
Bier, Few Vetting Failures; see also Pat St. Claire, Greg Botelho & Ralph Ellis,
San Bernadino shooter Tashfeen Malik: Who was she?, CNN (Dec. 8, 2015),
http://www.cnn.com/2015/12/06/us/san-bernardino-shooter-tashfeenmalik/index.html.
33
Bier, Few Vetting Failures.
34
Id.
26

(Mar. 6, 2017). This suggests that the government also considers the past the best
predictor of future threats, and the past indicates that the Entry Ban fails to target
those threats.
D. Nationals Of The Designated Countries Have Not Committed Any
Deadly Terrorist Attacks.
The government’s selection of the Designated Countries is not based on any
meaningful national security risk when viewed in light of the “terrorist attacks and
other public-safety threats” suggested by the Proclamation. Proclamation § 1. To
the contrary, there is a total disconnect between the countries chosen and countries
whose nationals, historically, have committed acts of terrorism or other crimes on
U.S. soil.
Table 2 provides the number of deaths and the historical probability of death
on U.S. soil by foreign-born nationals from the Designated Countries, other nonU.S. countries, and U.S.-born or unidentified attackers. Based on data from 1975
through October 31, 2017, the annual probability of death in an act of terrorism
committed by other foreign nationals was 1 in 3.8 million. 35 During this time, no

35

Alex Nowrasteh, The Halloween Terror Attack in New York: The Threat from
Foreign-Born Terrorists, CATO INSTITUTE: CATO AT LIBERTY (Oct. 31, 2017),
https://www.cato.org/blog/halloween-terror-attack-new-york-threat-foreign-bornterrorists.
27

one has been killed in a terrorist attack on U.S. soil by nationals from any of the
eight Designated Countries. 36
Table 2: Risk of Death by Terrorism by Nationality, 1975-2017 37
Nationality

Deaths

Historical Annual
Chance of Death

Other Non-U.S.
Countries

3,037

1 in 3.8 million

U.S. Citizen and
Unknown

411

1 in 28 million

Eight Designated
Countries

Zero

Zero

The Proclamation also specifically singles out immigrant visa applicants
(those who would receive legal permanent residency upon entry), barring all such
applications from six countries while allowing some nonimmigrants (temporary
visitors, such as students) from all but two countries. Proclamation § 2. The
evidence regarding terrorism threats cannot justify this discrimination. Indeed, as
Table 3 highlights, nonimmigrants (e.g., tourists, students, and those with fiancée

36

Alex Nowrasteh and David Bier, A List of Deadly Terrorists, CATO INSTITUTE
(Nov.
16,
2017),
https://object.cato.org/sites/cato.org/files/wpcontent/uploads/cato_a_list_of_deadly_terrorists.pdf (Cato, Deadly Terrorists).
37
Calculations based on data and sources in Cato, Deadly Terrorists. Annual
chance of death was calculated according to the methodology used in Alex
Nowrasteh, Terrorism and Immigration: A Risk Analysis, 798 C ATO INSTITUTE
POLICY
ANALYSIS
1,
2-4
(Sept.
13,
2016),
https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf.
28

visas) caused 87 percent of all terrorism deaths from 1975 to 2017, and immigrants
(e.g., Green Card holders) caused one half of one percent.
Table 3: Annual Chance of Being Killed in an Attack on U.S. Soil, Based on
Immigration Status of Terrorist, 1975-201738
Category
Nonimmigrant
(tourist, student,
fiancé visas)
Other foreign
entry
Immigrant visa
(permanent
resident)
U.S. Citizen or
Unknown

Deaths

Share of Deaths

Annual Chance of
Being Killed

3,003

87.1%

1 in 3.9 million

18

0.5%

1 in 642 million

16

0.5%

1 in 723 million

411

11.9%

1 in 28 million

The Proclamation also determines that the Designated Countries’ nationals
pose a “public safety threat.” See Proclamation § 1(c). Again, neither the
Proclamation nor government presents any evidence to support this conclusion.
Data from the U.S. Census Bureau, however, lead to the opposite inference:
nationals of Designated Countries are much less likely to be threats or become

38

Calculations based on Cato, Deadly Terrorists.
29

threats to the nation. Each individual nationality subject to restrictions under the
Entry Ban is less likely to be incarcerated than U.S.-born persons.39
As Table 4 shows, people from Designated Countries as a group are about
half as likely to end up incarcerated in the United States as those from other
foreign countries. U.S.-born persons are about five times more likely to be
incarcerated as those born in the Designated Countries. This evidence indicates
that people from Designated Countries are much less likely to commit the types of
serious crimes that result in incarceration than nationals from other countries.
Table 4: Incarceration Rates by Country of Origin, Ages 18-54, 201540
Other
Non-U.S.
Countries
Incarceration
Rate

Designated
Countries

United States

0.59%

0.32%

1.54%

Allowing lower-crime populations to immigrate to the United States—such
as the individuals targeted by the Entry Ban—reduces the overall crime rate. The
United States has benefited tremendously from an influx of legal immigrants who

39

Alex Nowrasteh, There Is No Public Safety Justification for the “Travel Ban”,
CATO
INSTITUTE:
CATO
AT
LIBERTY
(Oct.
8,
2017),
https://www.cato.org/blog/there-no-public-safety-or-criminal-justification-travelban (deriving statistics based on U.S. Census Bureau’s American Community
Survey, available at https://www.census.gov/programs-surveys/acs/data/summaryfile.2015.html).
40
Id.
30

are less than one-third as likely as native-born Americans to be incarcerated, and
their lower rates of criminality have reduced crime rates across the country. 41
Immigrants from the Designated Countries are not only no exception, but even
better in this regard than other immigrants.

41

Michelangelo Landgrave & Alex Nowrasteh, Criminal Immigrants: Their
Numbers, Demographics, and Countries of Origin, CATO INSTITUTE: IMMIGR. RES.
& POL’Y BRIEF 1 (Mar. 15, 2017), https://www.cato.org/publications/immigrationreform-bulletin/criminal-immigrants-their-numbers-demographics-countries
(finding that the native incarceration rate is 1.53 percent whereas the legal
immigrant incarceration is only 0.47 percent); Alex Nowrasteh, Immigration and
Crime—What the Research Says, CATO INSTITUTE: CATO AT LIBERTY (July 14,
2015), https://www.cato.org/blog/immigration-crime-what-research-says.
31

CONCLUSION
Amicus respectfully submits that the Court should consider the foregoing
evidence in assessing the statutory and constitutional challenges to the
Proclamation and the government’s challenge to the preliminary injunction.
Dated:

November 17, 2017
New York
Respectfully submitted,
By: /s/ Cameron C. Russell .
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
DAVID Y. LIVSHIZ
CAMERON C. RUSSELL
KAREN WISWALL
601 Lexington Avenue,
31st Floor
New York, New York 10022
[phone]
[e-mail]
DANIEL BRAUN
PETER JAFFE
700 13th Street, NW,
10th Floor
Washington, DC 20005
[phone]
Attorneys for Amicus Curiae
The Cato Institute

32

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation under Fed. R. App. P.
29(a)(4) because, excluding items exempted under Fed. R. App. P. 32(f), it
contains 6453 words.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it uses
a proportionally spaced Times New Roman typeface in 14-point size.
Dated:

November 17, 2017
New York
/s/ Cameron C. Russell
CAMERON C. RUSSELL
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
Attorney for Amicus Curiae
The Cato Institute

33

CERTIFICATE OF SERVICE
I, Cameron C. Russell, hereby certify that I electronically filed the foregoing
motion with the Clerk of the Court for the U.S. Court of Appeals for the Fourth
Circuit by using the appellate CM/ECF system on November 17, 2017.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Executed November 17, 2017,
at New York, New York.
/s/ Cameron C. Russell
CAMERON C. RUSSELL
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
Attorney for Amicus Curiae
The Cato Institute

34