Intl. Refugee Assistance v. Donald J. Trump

Filing 97

AMICUS CURIAE BRIEF by Immigration Equal., NYC Gay&Lesbian Anti-Violence Proj., Natl Queer Asian Pac. Islander All., LGBT Bar Assn of L.A., LGBT Bar Assn Greater NY, Lesbian&Gay Bar Assn of Chi., GLBTQ Legal Advs&Defs, & Bay Area Lawyers Indiv. Freedom. Amicus ISO Pls-Apps in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194684] [17-2231, 17-2232, 17-2233, 17-2240] Eric Gorman [Entered: 11/17/2017 03:48 PM]

Nos. 17-2231, 17-2232, 17-2233, 17-2240 (Consolidated)

In The United States Court of Appeals
for the Fourth Circuit
_______________

No. 17-2231(L)
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, A PROJECT OF THE URBAN JUSTICE
CENTER, INC., ON BEHALF OF ITSELF AND ITS CLIENTS; HIAS, INC., ON BEHALF OF
ITSELF AND ITS CLIENTS; JOHN DOES #1 & 3; JANE DOE #2; MIDDLE EAST STUDIES
ASS’N OF NORTH AMERICA, INC., ON BEHALF OF ITSELF AND ITS MEMBERS;
MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED MOHOMED; ARAB
AMERICAN ASS’N OF NEW YORK, ON BEHALF OF ITSELF AND ITS CLIENTS,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
STATES; U.S. DEP’T OF HOMELAND SECURITY; U.S. DEP’T OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE, ELAINE C. DUKE, IN HER OFFICIAL
CAPACITY AS ACTING SECRETARY OF HOMELAND SECURITY; REX TILLERSON, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF STATE; DANIEL R. COATS, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF NATIONAL INTELLIGENCE,
Defendants-Appellants (cont’d)
_______________

On Appeal from the United States District Court for the District of Maryland
_______________

Amicus Curiae Brief of Immigration Equality, the New York City Gay and
Lesbian Anti-Violence Project, The National Queer Asian Pacific Islander
Alliance, the LGBT Bar Association of Los Angeles, the LGBT Bar
Association of Greater New York, the Lesbian and Gay Bar Association of
Chicago, GLBTQ Legal Advocates & Defenders, and Bay Area Lawyers for
Individual Freedom in Support of Plaintiffs-Appellees
_____________________________
Eric J. Gorman*
Matthew E. Sloan
SKADDEN, ARPS, SLATE,
Noelle M. Reed
MEAGHER & FLOM LLP
Allison B. Holcombe
155 North Wacker Drive, Suite 2800
Richard A. Schwartz
Chicago, IL 60606
Alyssa J. Clover
[phone]
Sarah Grossnickle
[e-mail]
Jonathan Fombonne
Jennifer H. Berman
*Counsel of Record
Joseph M. Sandman
(Additional counsel
Brittany Ellenberg
listed on following page)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
Attorneys for Amici Curiae

Aaron Morris
IMMIGRATION EQUALITY
40 Exchange Place
Suite 1300
New York, NY 10005
[phone]
amorris@
immigrationequality.org

Virginia M. Goggin
NEW YORK CITY GAY
AND LESBIAN ANTIVIOLENCE PROJECT
116 Nassau Street
Floor 3
New York, NY 10038
[phone]
[e-mail]
Attorneys for Amici Curiae

ii

Glenn Magpantay
THE NATIONAL QUEER
ASIAN PACIFIC
ISLANDER ALLIANCE
233 Fifth Avenue
Suite 4A
New York, NY 10016
[phone]
glenn_magpantay@
nqapia.org

___________________________
No. 17-2232
IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1; JANE DOE #2; JANE DOE #3;
JANE DOE #4; JANE DOE #5; JANE DOE #6,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
STATES; ELAINE C. DUKE, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF
HOMELAND SECURITY; KEVIN K. MCALEENAN, IN HIS OFFICIAL CAPACITY AS
ACTING COMMISSIONER OF U.S. CUSTOMS AND BORDER PROTECTION; JAMES
MCCAMENT, IN HIS OFFICIAL CAPACITY AS ACTING DIRECTOR OF U.S. CITIZENSHIP
AND IMMIGRATION SERVICES; REX TILLERSON; JEFFERSON B. SESSIONS III, IN HIS
OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES,
Defendants-Appellants
_______________

On Appeal from the United States District Court for the District of Maryland
___________________________
No. 17-2233
EBLAL ZAKZOK; SUMAYA HAMADMAD; FAHED MUQBIL; JOHN DOE #1; JOHN DOE
#2; JOHN DOE #3,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
STATES; U.S. DEP’T OF HOMELAND SECURITY; U.S. DEP’T OF STATE; ELAINE C.
DUKE, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF HOMELAND
SECURITY; REX TILLERSON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE,
Defendants-Appellants (Cont’d)
_______________

On Appeal from the United States District Court for the District of Maryland
___________________________

iii

___________________________
No. 17-2240
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, A PROJECT OF THE URBAN
JUSTICE CENTER, INC., ON BEHALF OF ITSELF AND ITS CLIENTS; HIAS, INC., ON
BEHALF OF ITSELF AND ITS CLIENTS; JOHN DOES #1 & 3; JANE DOE #2; MIDDLE
EAST STUDIES ASS’N OF NORTH AMERICA, INC., ON BEHALF OF ITSELF AND ITS
MEMBERS; MUHAMMED METEAB; ARAB AMERICAN ASS’N OF NEW YORK, ON
BEHALF OF ITSELF AND ITS CLIENTS,
Plaintiffs-Appellants,
and
PAUL HARRISON; IBRAHIM AHMED MOHOMED; ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs,
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED
STATES; U.S. DEP’T OF HOMELAND SECURITY; DEP’T OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE, ELAINE C. DUKE, IN HER OFFICIAL
CAPACITY AS ACTING SECRETARY OF HOMELAND SECURITY; REX TILLERSON, IN
HIS OFFICIAL CAPACITY AS SECRETARY OF STATE; DANIEL R. COATS, IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF NATIONAL INTELLIGENCE,
Defendants-Appellees.
_______________

On Appeal from the United States District Court for the District of Maryland
___________________________

iv

CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 29(a)(4)(A) and Circuit Rule 26.1, amicus
curiae, Immigration Equality, The New York City Gay And Lesbian AntiViolence Project, The National Queer Asian Pacific Islander Alliance, The LGBT
Bar Association of Los Angeles, The LGBT Bar Association of Greater New York,
the Lesbian and Gay Bar Association of Chicago, GLBTQ Legal Advocates &
Defenders, and Bay Area Lawyers for Individual Freedom (collectively, “amici”),
make the following disclosures:
1.

Each Amici is a non-profit organization that has no parent corporation.

2.

No publicly-held corporation or other publicly-held entity owns any

portion of any of the amici.
3.

Amici are unaware of any publicly-held corporation or other publicly-

held entity that has a direct financial interest in the outcome of this litigation.
4.

This case does not arise out of a bankruptcy proceeding.
*

*

*

(signature appears on following page)

v

Dated: November 17, 2017

Respectfully submitted,
/s/ Eric J. Gorman
Eric J. Gorman
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
155 North Wacker Dr.
Suite 2800
Chicago, IL 60606
[phone]
Counsel for Amici Curiae
Immigration Equality, The New York City
Gay And Lesbian Anti-Violence Project, The
National Queer Asian Pacific Islander
Alliance, The LGBT Bar Association of Los
Angeles, The LGBT Bar Association of
Greater New York, the Lesbian and Gay Bar
Association of Chicago, GLBTQ Legal
Advocates & Defenders, and Bay Area
Lawyers for Individual Freedom

vi

TABLE OF CONTENTS
Page
STATEMENT OF INTEREST ................................................................................ 1
SUMMARY OF ARGUMENT ............................................................................... 2
FACTUAL BACKGROUND .................................................................................. 4
I.

MANY LGBTQ INDIVIDUALS FACE PERSECUTION
AND HOSTILE SOCIAL ENVIRONMENTS IN THEIR
COUNTRIES OF ORIGIN, ESPECIALLY IN THE EIGHT
COUNTRIES TARGETED IN THE PROCLAMATION ................. 4

ARGUMENT ......................................................................................................... 17
I.

THE UNIQUE HARDSHIPS IMPOSED ON LGBTQ
POPULATIONS BY THE PROCLAMATION ARE
CONTRARY TO U.S. LAW AND AGAINST THE
PUBLIC INTEREST ......................................................................... 17
A.

Constitutional And Federal Law Emphasize
The Importance Of Family Reunification
And Marriage .......................................................................... 17

B.

“Familial Relations” Should Be Construed
Broadly To Give Equal Dignity To LGBTQ Families ........... 20

II.

THE PROCLAMATION CONTRAVENES U.S.
LAW AND POLICY, WHICH ACCEPT LGBTQ
INDIVIDUALS AS IMMIGRANTS ................................................ 24

III.

THE PROCLAMATION’S WAIVER PROVISIONS
DO NOT LESSEN THE IMPACT OF THE
PROCLAMATION ON LGBTQ INDIVIDUALS ........................... 28

CONCLUSION ...................................................................................................... 30

vii

TABLE OF AUTHORITIES
Page
CASES
Bassett v. Snyder,
59 F. Supp. 3d 837 (E.D. Mich. 2014) .......................................................... 26
Board of Directors of Rotary International v. Rotary Club of Duarte,
481 U.S. 537 (1987)....................................................................................... 23
Boutilier v. INS,
387 U.S. 118 (1967)....................................................................................... 26
Fiallo v. Bell,
430 U.S. 787 (1977)....................................................................................... 19
Hawaii v. Trump,
No. 1:17-cv-00050-DKW-KSC, 2017 WL 2989048
(D. Haw. July 13, 2017) ................................................................................ 23
INS v. Errico,
385 U.S. 214 (1966)....................................................................................... 19
Iranian Alliances Across Borders v. Trump,
No. 8:17-cv-17-2921, 2017 WL 4674314 (D. Md. Oct. 17, 2017) ................. 2
International Refugee Assistance Project v. Trump,
No. 8:17-cv-00361-TDC, 2017 WL 4674314 (D. Md. Oct. 17, 2017) ........... 2
Kaliski v. District Director of INS,
620 F.2d 214 (9th Cir. 1980) ......................................................................... 23
Khan v. Holder,
584 F.3d 773 (9th Cir. 2009) ......................................................................... 20
Meyer v. Nebraska,
262 U.S. 390 (1923)....................................................................................... 17
Moore v. City of East Cleveland, Ohio,
431 U.S. 494 (1977)....................................................................................... 23
Obergefell v. Hodges,
576 U.S. ___, 135 S. Ct. 2584 (2015) ...............................................17, 21, 26
Solis-Espinoza v. Gonzales,
401 F.3d 1090 (9th Cir. 2005) ...........................................................18, 19, 25
Troxel v. Granville,
530 U.S. 57 (2000)......................................................................................... 22

viii

Trump v. International Refugee Assistance Project,
___ U.S. ___, 137 S. Ct. 2080 (2017) ........................................................... 27
United States v. Raya-Vaca,
771 F.3d 1195 (9th Cir. 2014) ....................................................................... 19
Zablocki v. Redhail,
434 U.S. 374 (1978)....................................................................................... 17
Zadvydas v. Davis,
533 U.S. 678 (2001).................................................................................17, 18
Zazok v. Trump,
No. 8:17-cv-2969-TDC, 2017 WL 4674314 (D. Md. Oct. 17, 2017) ............. 2
STATUTES
United States Constitution Article VI, cl. 2 ............................................................. 20
8 U.S.C. § 1101(b)(1)............................................................................................... 27
8 U.S.C. § 1101(c)(1) ............................................................................................... 27
8 U.S.C. § 1153(a)(2) ............................................................................................... 18
OTHER AUTHORITIES
Aengus Carroll, State-Sponsored Homophobia: A World Survey of Sexual
Orientation Laws, International Lesbian, Gay, Bisexual, Trans and Intersex
Association (12th ed. 2017), http://ilga.org/downloads/2017/ILGA_State_
Sponsored_Homophobia_2017_WEB.pdf ............................................3, 5, 21
Amnesty International, Making Love a Crime, Criminalization of Same-Sex
Conduct in Sub-Saharan Africa (June 24, 2013),
https://www.amnestyusa.org/reports/making-love-a-crime-criminalizationof-same-sex-conduct-in-sub-saharan-africa/ ................................................. 11
Amnesty International: Torture was my Punishment: Abductions, Torture and
Summary Killings Under Armed Group Rule in Aleppo and Idleb, Syria
(July 2016), https://www.amnestyusa.org/reports/torture-was-mypunishment-abductions-torture-and-summary-killings-under-armed-grouprule-in-aleppo-and-idleb-syria/ ...................................................................... 14
Ben Gladstone, For Yemen’s gay community social media is a savior, The Irish
Times (Aug. 22, 2015), http://www.irishtimes.com/news/world/middleeast/for-yemen-s-gay-community-social-media-is-a-saviour-1.2324447 ..... 16
Canada: Immigration and Refugee Board of Canada, Libya: Situation of sexual
minorities, including legislation; treatment by society and authorities; state
protection and available services (2011-July 2014), July 17, 2014,
LBY104913.E, http://www.refworld.org/docid/54ca12544.html ............... 8, 9

ix

Catarina Stewart, Young Somali activist sentenced to death for being a lesbian,
The Independent (Jan. 30, 2016),
http://www.independent.co.uk/news/world/Africa/young-somali-activistsentenced-to-death-for-being-a-lesbian-a6844216.html .........................11, 12
Choe Sang-Hun, North Korean Defector Opens Up About Long-Held Secret: His
Homosexuality, N.Y. Times (June 5, 2015),
https://www.nytimes.com/2015/06/06/world/asia/north-korea-defectorjang-yeong-jin-gay.html?_r=0 ...............................................................3, 9, 10
Criminal Law of the Democratic People’s Republic of Korea (2009),
Articles 194, 262 ............................................................................................ 10
Glenn Garner, Parliament of Chad Calls for Criminalization of Homosexuality,
Out Magazine (Dec. 16, 2016), https://www.out.com/newsopinion/2016/12/16/parliament-chad-calls-criminalizationhomosexuality .................................................................................................. 6
H.R. Rep. No. 1365 (1952) ..................................................................................... 19
H.R. Rep. No. 85-1199 (1957)................................................................................. 19
Human Rights Committee, General Comment No. 18, U.N. Doc.
HRI/GEN/1Rev.1 (1994) ............................................................................... 20
Human Rights Watch, We Are a Buried Generation (Dec. 15, 2010),
https://www.hrw.org/report/2010/12/15/we-are-buried-generation/
discrimination-and-violence-against-sexual-minorities .............................. 3, 7
Human Rights Watch, World Report 2017: Events of 2016,
https://hrw.org/sites/default/files/world_report_download/wr2017web.pdf ................................................................................................9, 13, 14
International Covenant on Civil & Political Rights, 138 Cong. Rec. S4781-01
(daily ed. Apr. 2, 1992).................................................................................. 20
International Labour Organization, Republican Decree for Law No 12 for the Year
1994 Concerning Crimes and Penalties, Section 11, Article 264,
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/83557/92354/
F1549605860/YEM83557.pdf ....................................................................... 16
International Refugee Rights Initiative, Rights In Exile Programme, Yemen LGBTI
Resources, http://www.refugeelegalaidinformation.org/yemen-lgbtiresources ........................................................................................................ 15
Kate Jastram & Kathleen Newland, Family unity and refugee protection, Refugee
Protection in International Law: UNHCR’s Global Consultations on
International Protection (Erika Feller et al. eds., 2003),
http://www.unhcr.org/419dbf664.html .......................................................... 24
Libya: Penal Code of 1953 as amended by Law 70 of 2 October 1973, Articles
407(4), 408(4) .................................................................................................. 7
x

Mission for Establishment of Human Rights in Iran, Islamic Penal Code of Iran,
http://mehr.org/Islamic_Penal_Code_of_Iran.pdf........................................... 7
Nick Robins-Early, North Korea Responds To Human Rights Report With
Homophobic Statement, HuffPost (Apr. 23, 2014),
https://www.huffingtonpost.com/2014/04/23/north-koreahomophobia_n_5198717.html ....................................................................... 11
North executes lesbians for being influenced by capitalism, The Korea Times
(Sept. 29, 2011), http://www.koreatimes.co.kr/www/
news/nation/2011/09/18295702.html ............................................................ 10
Red LGBTI de Venezuela and Unión Afirmativa de Venezuela, Universal
Periodic Review- Venezuela (November, 2016) A summary on Lesbian, Gay,
Bisexual Trans and Intersex (LGBTI) human rights issues in Venezuela and
recommendations,
http://ilga.org/downloads/SUMMARY_VENEZUELA.pdf ......................... 15
Red LGBTI de Venezuela and Unión Afirmativa de Venezuela, Report of the
LGBTI Network of Venezuela to the United Nations Human Rights
Committee on the Fourth Periodic Report of Venezuela concerning the
International Covenant on Civil and Political Rights during the 114th
Period of Sessions (May 2015),
http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/VEN/INT
_CCPR_CSS_VEN_20596_E.pdf ...........................................................14, 15
Presidential Proclamation Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or Other PublicSafety Threats (Sep. 24, 2017) ..........................................................................passim
Richard Fry & Jeffrey S. Passel, In Post-Recession Era, Young Adults Drive
Continuing Rise in Multi-Generational Living, Pew Research Center (July
17, 2014), http://www.pewsocialtrends.org/2014/07/17/in-post-recessionera-young-adults-drive-continuing-rise-in-multi-generational-living/.......... 22
S. Exec. Report 102-23 (102d Cong., 2d Sess.)....................................................... 20
Somalia: Penal Code, Legislative Decree No. 5/1962, Article 409 ........................ 11
Soon Kyu Choi & Ilan H. Meyer, LGBT Aging: A Review of Research Findings,
Needs, and Policy Implications, Los Angeles: The Williams Institute (Aug.
2016), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBTAging-A-Review.pdf ..................................................................................... 22
Swedish International Government Cooperation Agency, The Rights of LGBTI
People in Somalia (Nov. 2014), http://www.sida.se/globalassets/sida
/eng/partners/human-rights-based-approach/lgbti/rights-of-lgbt-personssomalia.pdf..................................................................................................... 12
Syria: Penal Code of 1949, Articles 517, 520.......................................................... 12

xi

United Kingdom: Foreign and Commonwealth Office, Human Rights and
Democracy: The 2012 Foreign & Commonwealth Office Report - Libya
(Apr. 15, 2013), https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/408376/Cm_8593_Accessible_complete.pdf ................ 9
United Nation Human Rights Council, Report of the Special Rapporteur on the
situation of human rights in the Islamic Republic of Iran, U.N. Doc.
A/HRC/22/56 (Feb. 28, 2013), http://www.ohchr.org/Documents/Countries/
IR/A-HRC-22-56_en.pdf ................................................................................. 6
United Nation Human Rights Council, Summary Prepared by the Office of the
United Nations High Commissioner for Human Rights (Feb. 23, 2015),
http://www.ecoi.net/file_upload/1930_1453302677_g1503174.pdf. ............. 8
United Nation Human Rights Council, Universal Periodic Review second cycle,
Summary of stakeholders’ information (Nov. 6, 2015) ................................. 12
United States Citizenship and Immigration Services, K-1 Process: Step by step,
https://www.uscis.gov/family/k-1-process-step-step .................................... 18
United States Department of State, Bureau of Consular Affairs, Nonimmigrant
Visa for a Fiancé(e) (K1),
https://travel.state.gov/content/visas/en/immigrate/family/fiance-k-1.html . 18
United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Chad (2016),
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=201
6&dlid=265238 ................................................................................................ 6
United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Iran (2016),
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?
year=2016&dlid=265496................................................................................. 7
United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Libya (2016),
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm
?year=2016&dlid=265510 ........................................................................... 8, 9
United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Somalia (Mar.
3, 2017), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?
year=2016&dlid=265300............................................................................... 11
United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Syria (Mar. 29,
2017), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?
year=2016&dlid=265520............................................................................... 13
United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Venezuela
(2016), https://www.state.gov/documents/organization/265834.pdf ............ 15
xii

United States Department of State, Bureau of Democracy, Human Rights and
Labor, 2016 Country Reports on Human Rights Practices – Yemen (2016),
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=
2016&dlid=265528 ........................................................................................ 16
United States Department of State, Bureau of Democracy, Human Rights and
Labor, Court Order on Presidential Proclamation on Visas (Oct. 17, 2017),
https://travel.state.gov/content/travel/en/news/importantannouncement.html ........................................................................................ 28

xiii

STATEMENT OF INTEREST
This brief sets forth the legal and policy concerns of Amici Curiae
Immigration Equality, The New York City Gay And Lesbian Anti-Violence
Project, The National Queer Asian Pacific Islander Alliance, The LGBT Bar
Association of Los Angeles, The LGBT Bar Association of Greater New York, the
Lesbian and Gay Bar Association of Chicago, GLBTQ Legal Advocates &
Defenders, and Bay Area Lawyers for Individual Freedom (collectively, “Amici
Curiae”) regarding the President’s Presidential Proclamation Enhancing Vetting
Capabilities and Processes for Detecting Attempted Entry Into the United States by
Terrorists or Other Public-Safety Threats (Sep. 24, 2017) (the “Proclamation” or
“P.P.”).1
Amici Curiae are organizations devoted to the promotion of equal treatment
for LGBTQ individuals in the United States and around the world, including
through organizing, education, counseling, direct legal representation, and
advocacy. In particular, Amici Curiae believe that LGBTQ individuals are entitled
to equal treatment in the immigration context and under the law in general.

1

No party to the appeal, nor counsel for any party to the appeal, authored any
part of this brief. No party or party’s counsel contributed money that was intended
to fund preparing or submitting this brief. The parties have consented to the filing
of this amicus brief.
1

Amici Curiae are deeply troubled by the impact that the Proclamation would
have on LGBTQ people in the United States and in the eight countries from which
the Proclamation would drastically restrict — if not effectively ban — immigration.
Indeed, for all of its negative effects generally, the Proclamation will inflict unique
harm on LGBTQ people in the eight target countries by foreclosing escape from
the venomous, and often vicious, anti-LGBTQ conditions that prevail there. The
proclamation will also affect LGBTQ Americans by blocking potential LGBTQ
reunifications with loved ones in the eight countries.
The Proclamation is bad policy made worse because it assaults established
United States legal principles and constitutionally protected rights. Amici Curiae
respectfully urge the Court to affirm the District of Maryland’s decisions in
International Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC, 2017
WL 4674314 (D. Md. Oct. 17, 2017); Iranian Alliances Across Borders v. Trump,
No. 8:17-cv-17-2921, 2017 WL 4674314 (D. Md. Oct. 17, 2017); and Zazok v.
Trump, No. 8:17-cv-2969-TDC; 2017 WL 4674314 (D. Md. Oct. 17, 2017), avoid
the significant, irreversible harms that the Proclamation would inflict, assuming
those decisions will lapse while the litigation proceeds below.
SUMMARY OF ARGUMENT
Individuals who identify as lesbian, gay, bisexual, transgender and queer live,
in many countries around the world, in persistent, grave danger. As of October

2

2016, homosexual conduct was still outlawed in more than 70 countries worldwide,
13 of which made such conduct punishable by death.2 Some regimes deny the very
existence of LGBTQ people, making it impossible for LGBTQ individuals to seek
government protection from the severe persecution and violence to which they are
routinely subjected.3
Like other immigrants, LGBTQ persons who already have family or partners
living in the United States are eligible to apply for visas based on this family status.
The process is long and difficult in the best of circumstances and the difficulty is
only compounded by the Proclamation, which, if enforced, would halt visa
processing from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and
Yemen (the “eight countries”). For LGBTQ individuals, this shutdown is not
simply a bureaucratic inconvenience, but potentially a matter of life and death. A

2

Aengus Carroll, State-Sponsored Homophobia: A World Survey of Sexual
Orientation Laws, International Lesbian, Gay, Bisexual, Trans and Intersex
Association, at 37-40 (12th ed. 2017), http://ilga.org/downloads/2017/ILGA_State
_Sponsored_Homophobia_2017_WEB.pdf (“World Survey”).
3

See, e.g., Human Rights Watch, We Are a Buried Generation (Dec. 15,
2010), https://www.hrw.org/report/2010/12/15/we-are-buried-generation/
discrimination-and-violence-against-sexual-minorities (“Buried Generation”)
(recounting statement of Iran’s then-President Mahmoud Ahmadinejad in 2007 that
“[i]n Iran we don’t have homosexuals like you do in your country. This does not
exist in our country.”); Choe Sang-Hun, North Korean Defector Opens Up About
Long-Held Secret: His Homosexuality, N.Y. Times (June 5, 2015), https://www.
nytimes.com/2015/06/06/world/asia/north-korea-defector-jang-yeong-jingay.html?_r=0 (“North Korean Defector”).
3

family-based visa delayed by the Proclamation is, in effect, a visa denied. Visa
approvals thwarted by the Proclamation mean LGBTQ individuals must remain in
hostile and unsafe conditions indefinitely, delaying reunification with family
members in safe communities. The danger is heightened because merely seeking
visas from local consular officials, while citing a same-sex relationship as the basis
for a waiver, reveals applicants’ sexual orientations or gender identities to local
communities and government officials. Moreover, because the Administration will
only provide waivers to applicants with “formal” and “documented” close familial
relationships, LGBTQ individuals — whose relationships are neither sanctioned
nor documented by their countries of origin — stand to be disproportionately
excluded from these waivers.
FACTUAL BACKGROUND
I.

MANY LGBTQ INDIVIDUALS FACE PERSECUTION AND
HOSTILE SOCIAL ENVIRONMENTS IN THEIR COUNTRIES OF
ORIGIN, ESPECIALLY IN THE EIGHT COUNTRIES TARGETED
IN THE PROCLAMATION
While the United States recently has made strides in advancing LGBTQ

rights, including the right to form an officially-recognized family, the situation in
many countries around the globe remains exceedingly grim. Even in countries
where LGBTQ status is not considered a crime, LGBTQ individuals are still

4

unable to forge family relationships due to severely anti-LGBTQ legal regimes.4
Consequently, for those seeking visas based on family or relationship status,
documenting their LGBTQ status in their countries of origin leaves them exposed
to persecution and violence, causing many visa-seekers to fear the consequences of
providing documentation of their status for those visa applications.
The Proclamation, as drafted, would significantly impair, if not block, many
LGBTQ individuals’ chances at family unification, and dramatically increase the
risk of harm to these applicants abroad. Seven of the eight countries targeted by
the Proclamation explicitly criminalize homosexual conduct, with some of them
authorizing or even mandating the death penalty for such offenses.5 And in each of
these countries, LGBTQ individuals face societal and institutionalized homophobia,
with many suffering persecution from multiple sources, including disapproving
family members, government and police forces, and terrorist groups.

The

treatment of LGBTQ people in the eight countries — treatment to which the
Proclamation would indefinitely consign LGBTQ family members — is detailed
below:
Chad. On December 12, 2016, Chad’s National Assembly approved a
revision to the penal code that criminalizes same-sex relations, punishable by
4

World Survey, supra n.2, at 26.

5

Id. at 37-40.
5

imprisonment and a fine. 6 In support of the new law, a former prime minister
stated, “Homosexuality is condemned by all religions. We do not have to forgive
something that God himself rejects because Westerners have said this or that.”7 As
a result of this new law, LGBTQ people in Chad are now exposed to threats of
criminal and civil prosecution by virtue of their sexual orientation or gender
identity.
Iran. As the U.N. Human Rights Council has noted and condemned on
multiple occasions, LGBTQ people in Iran consistently “face harassment,
persecution, cruel punishment, and are denied basic human rights.” 8

Iran

criminalizes same-sex relations between consenting adults, and even mandates the
death penalty for the “passive” male engaged in “sodomy” and for fourth-time

6

U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016 Country
Reports on Human Rights Practices – Chad 23 (2016), https://www.state.gov
/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265238.
7

Glenn Garner, Parliament of Chad Calls for Criminalization of
Homosexuality, Out Magazine (Dec. 16, 2016), https://www.out.com/newsopinion/2016/12/16/parliament-chad-calls-criminalization-homosexuality.
8

U.N. Human Rights Council, Report of the Special Rapporteur on the
Situation of Human Rights in the Islamic Republic of Iran 20, U.N. Doc.
A/HRC/22/56 (Feb. 28, 2013), http://www.ohchr.org/Documents/Countries
/IR/A-HRC-22-56_en.pdf.
6

“lesbian” offenders.9 Authorities conduct many of these executions in public. 10
Those who are not subject to the death penalty may nonetheless be punished by up
to 100 lashes for engaging in same-sex relations.11
LGBTQ people in Iran also face pervasive harassment, abuse, and violence
“at the hands of private actors, including members of their family and society at
large,” as well as “members of Iran’s police, security, and intelligence forces in
public spaces.”12 The Iranian Penal Code does not include hate crime laws or other
criminal justice mechanisms to aid in the prosecution of bias-motivated crimes.13
Libya. Libya’s Penal Code criminalizes consensual same-sex sexual acts,
which are punishable by up to five years in prison for both partners.14 “In the

9

Mission for Establishment of Human Rights in Iran, Islamic Penal Code of
Iran, Part 2, Article 111; Part 3, Article 131, at 5, 7, http://mehr.org/Islamic
_Penal_Code_of_Iran.pdf (“Iran Penal Code”).
10

U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016 Country
Reports on Human Rights Practices – Iran 3 (2016), http://www.state.gov/j/drl
/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265496 (“Iran Country
Report”).
11

Iran Penal Code, supra n.9, Part 2, Articles 112, 113; Part 3, Article 129, at

5-7.
12

Buried Generation, supra n.3.

13

Iran Country Report, supra n.10, at 43-44.

14

Libya: Penal Code of 1953, as amended by Law 70 of October 2, 1973,
Articles 407(4), 408(4).
7

Libyan society, to be gay [is] considered against Islam.” 15 Indeed, in 2012,
Libya’s representative to the U.N. proclaimed in a U.N. Human Rights Council
meeting that “gays threaten the continuation of the human race.”16
Reflecting these social mores, official and societal persecution and violence
against LGBTQ individuals in Libya are widespread, and no legislation exists to
protect LGBTQ individuals against such mistreatment. 17 In its 2016 report on
human rights in Libya, the State Department noted several reports of physical
violence, harassment, and blackmail based on sexual orientation and gender
identity. “Militias often policed communities to enforce compliance with militia
commanders’ understanding of ‘Islamic’ behavior, and harassed and threatened
with impunity individuals believed to have LGBTI orientations and their

15

U.N. Human Rights Council, Summary Prepared by the Office of the United
Nations High Commissioner for Human Rights (Feb. 23, 2015), http://www.ecoi.
net/file_upload/1930_1453302677_g1503174.pdf.
16

Canada: Immigr. and Refugee Bd. of Canada, Libya: Situation of sexual
minorities, including legislation; treatment by society and authorities; state
protection and available services (2011-July 2014) (July 17, 2014),
http://www.refworld.org/docid/54ca12544.html (“Libya: Situation of Sexual
Minorities”).
17

See id.; U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016
Country Reports on Human Rights Practices – Libya, at 28 (2016),
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=
265510 (“Libya’s Human Rights Practices”).
8

families.”18 For example, in 2013, reports emerged that 12 men, believed to be
homosexual, were detained and threatened with execution by an armed group
seeking to enforce a strict form of Islamic Sharia law.19 Other individuals have
reported being arrested and raped by Libyan police due to their sexual
orientation.20
North Korea. As Human Rights Watch has noted, “North Korea remains
one of the most repressive authoritarian states in the world.” 21 The coercive,
intrusive atmosphere extends to nearly every aspect of North Koreans’ daily lives,
including their sexuality and sexual orientation. As one North Korean refugee
recently explained, the totalitarian government in North Korea “maintains that
homosexuality does not exist because people there live with a ‘sound mentality and
good morals.’”22 Consequently, homosexuality is not openly discussed in North
Korea, and some individuals report that “no ordinary people conceptually
18

Libya’s Human Rights Practices, supra n.17, at 28.

19

United Kingdom: Foreign and Commonwealth Office, Human Rights and
Democracy: The 2012 Foreign & Commonwealth Office Report - Libya 194 (Apr.
15, 2013), https://www.gov.uk/government/uploads/system/uploads/attachment
_data/file/408376/Cm_8593_Accessible_complete.pdf.
20

Libya: Situation of Sexual Minorities, supra n.16.

21

Human Rights Watch, World Report 2017: Events of 2016, at 457,
https://hrw.org/sites/default/files/world_report_download/wr2017-web.pdf (“World
Report 2017”).
22

North Korean Defector, supra n.3.
9

understand what homosexuality is.” 23

Due to this ubiquitous government

oppression, “[t]here are many homosexuals in North Korea who live a miserable
life without even knowing why.”24
Consistent with its totalitarian control over daily life, North Korea’s
Criminal Code prohibits conduct that “reflects decadent, carnal or foul contents” as
well as any “obscene activities.” 25 The government reportedly has executed
LGBTQ individuals under these laws, noting that “[t]hey were badly influenced by
capitalism . . . and brought corruption of public morals.”26
North Korea’s government and state-controlled media openly condemn
LGBTQ individuals, even in international affairs. For example, in responding to a
United Nations investigation into human rights abuses in the country, the state
news agency claimed that the “practice [of homosexuality] can never be found in

23

Id.

24

Id.

25

Criminal Law of the Democratic People’s Republic of Korea (2009),
Articles 194, 262.
26

North executes lesbians for being influenced by capitalism, The Korea
Times (Sept. 29, 2011), http://www.koreatimes.co.kr/www/news/nation/2011/
09/182_95702.html.
10

the DPRK” and that it was “ridiculous for such gay [sic] to sponsor dealing with
others’ human rights issue.”27
Somalia. Homosexual conduct is outlawed in Somalia. In northern Somalia,
where the Somalian Penal Code governs, homosexual intercourse is punishable by
imprisonment from three months to three years.28 In southern Somalia, under the
control of militants, consensual same-sex sexual acts are punished by flogging or
by death.29
Somali society largely deems sexual orientation and gender identity to be
taboo. 30

Thousands of LGBTQ individuals in Somalia keep their sexual

orientation a “closely guarded secret,” knowing that revealing that information
could attract potential retribution from terrorist groups or armed gangs.31 As one

27

Nick Robins-Early, North Korea Responds To Human Rights Report With
Homophobic Statement, HuffPost (Apr. 23, 2014), https://www.huffingtonpost.
com/2014/04/23/north-korea-homophobia_n_5198717.html.
28

Somalia: Penal Code, Legislative Decree No. 5/1962, Article 409.

29

Amnesty Int’l, Making Love a Crime, Criminalization of Same-Sex Conduct
in Sub-Saharan Africa (June 24, 2013), https://www.amnestyusa.org/reports/
making-love-a-crime-criminalization-of-same-sex-conduct-in-sub-saharan-africa.
30

U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016 Country
Reports on Human Rights Practices – Somalia, at 38 (Mar. 3, 2017),
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=
265300.
31

Catarina Stewart, Young Somali activist sentenced to death for being a
lesbian, The Independent (Jan. 30, 2016), http://www.independent.co.uk/
(cont’d)

11

source described it, “LGBT people in Somalia are silent and invisible, often facing
violence and rejection from their families and communities that results in honour
killings and suicides.”32
Violence against LGBTQ people in Somalia is rampant. For example, there
have been reports of gangs of armed men searching the streets of Somalia for
people suspected of being LGBTQ.33 The U.N. Human Rights Council reported a
2013 incident in which a gay Somali 18-year-old teen was blindfolded, buried up
to his waist, and then stoned to death for allegations of homosexuality.34
Syria. The Syrian Penal Code prohibits “carnal relations against the order
of nature,” and provides for at least three years’ imprisonment for violations. 35
Though the law does not specifically address LGBTQ activity, police have used

________________________
(cont’d from previous page)

news/world/Africa/young-somali-activist-sentenced-to-death-for-being-a-lesbiana6844216.html.
32

Swedish Int’l Government Cooperation Agency, The Rights of LGBTI
People in Somalia, at 1 (Nov. 2014), http://www.sida.se/globalassets/sida
/eng/partners/human-rights-based-approach/lgbti/rights-of-lgbt-personssomalia.pdf.
33

Id.

34

U.N. Human Rights Council, Universal Periodic Review second cycle,
Summary of stakeholders’ information, at 3 (Nov. 6, 2015).
35

Syria: Penal Code of 1949, Articles 517, 520.
12

this provision to persecute LGBTQ people.36 Police also frequently target LGBTQ
individuals by arresting them without basis on pretexts such as abusing social
values; selling, buying, or consuming illegal drugs; and organizing and promoting
“obscene” parties.37
The State Department has recognized “overt societal discrimination based on
sexual orientation and gender identity in all aspects of [Syrian] society.”38 Syrian
media has reported numerous examples of government and police forces using
accusations of homosexuality as a pretext to detain, arrest, and torture LGBTQ
people.39
LGBTQ people in Syria also face extreme threats of violence at the hands of
militant Islamist groups. NGOs have documented such violence, including against
a fifteen-year-old boy who was stoned to death after he was accused of being
gay.40 According to Human Rights Watch, at least twenty-five Syrian men were
murdered in 2016 by extremist groups “on suspicion of homosexuality or for
36

U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016 Country
Reports on Human Rights Practices – Syria, at 53 (Mar. 29, 2017),
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=
265520.
37

Id.

38

Id.

39

Id.

40

World Report 2017, supra n.21, at 575-76.
13

sodomy.”41 Amnesty International documented the execution of three men — one
of whom was just seventeen years old — accused of homosexuality.42 A witness
to the shooting described the horrific scene: “When I approached the crowd, I saw
the body of the boy shot twice. . . . A man standing there told me that he was
shot . . . in front of all the people because he was gay.”43
Venezuela.

In Venezuela, LGBTQ individuals “constantly live [in]

situations of discrimination, threats and attacks against their moral, psychological
[and] physical integrity, and still lack legal protection which makes them
defenseless citizens in an atmosphere of alarming growth of homophobia and
transphobia, as a result of the absence of laws, policies and institutions that
guarantee equality in the exercise of fundamental rights and freedoms.” 44
According to a 2016 report, 175 hate crimes occurred on the basis of sexual
41

Id.

42

Amnesty Int’l, Torture was my Punishment: Abductions, Torture and
Summary Killings Under Armed Group Rule in Aleppo and Idleb, Syria, at 28 (July
2016),
https://www.amnestyusa.org/reports/torture-was-my-punishmentabductions-torture-and-summary-killings-under-armed-group-rule-in-aleppo-andidleb-syria/.
43

Id.

44

Red LGBTI de Venezuela and Unión Afirmativa de Venezuela, Report of
the LGBTI Network of Venezuela to the United Nations Human Rights Committee
on the Fourth Periodic Report of Venezuela concerning the International Covenant
on Civil and Political Rights during the 114th Period of Sessions, at 3 (May 2015),
http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/VEN/INT_CCP
R_CSS_VEN_20596_E.pdf (“Venezuela Report”).
14

orientation, gender identity and expression between January 2009 and May 2016.45
Victims of these hate crimes frequently do not report incidents to the authorities,
since they are often subjected to threats or extortion if they file formal
complaints.46 Perpetrators of these hate crimes often act with impunity since “no
progress has been made to investigate and prosecute acts of violence against
lesbian, gay, bisexual, trans and/or intersex people.” 47 Although only a narrow
category of Venezuelan government officials is affected by the Proclamation, those
individuals are no less affected by such threats to their personal safety. See P.P. §
2(f).
Yemen. “Yemen is a conservative Arab state where homosexuality is seen
as taboo and is condemned under the country’s strong Islamic beliefs.”48 Yemen’s
Penal Code outlaws same-sex relations, with punishments ranging from 100 lashes

45

Red LGBTI de Venezuela and Unión Afirmativa de Venezuela, Universal
Periodic Review- Venezuela (November, 2016) A summary on Lesbian, Gay,
Bisexual Trans and Intersex (LGBTI) human rights issues in Venezuela and
recommendations, http://ilga.org/downloads/SUMMARY_VENEZUELA.pdf.
46

U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016 Country
Reports on Human Rights Practices – Venezuela, at 36 (2016),
https://www.state.gov/documents/organization/265834.pdf.
47

Venezuela Report, supra n.44, at 10.

48

Int’l Refugee Rights Initiative, Rights In Exile Programme, Yemen LGBTI
Resources, http://www.refugeelegal aidinformation.org/yemen-lgbti-resources.
15

to death by stoning.

49

Yemen’s laws similarly do not protect against

discrimination or hate crimes against LGBTQ individuals.50 Quite the opposite.
“[T]he most serious issue connected to the ban on homosexuality is that victims of
hate crimes cannot seek help from the authorities.”51
Because of the risk of criminal prosecution and severe punishment, as well
as the societal condemnation they face, most LGBTQ individuals in Yemen are
forced to live in hiding, and few LGBTQ people are open about their sexual
orientation or gender identity.52

49

Int’l Labour Org., Republican Decree for Law No 12 for the Year 1994
Concerning Crimes and Penalties, Section 11, Article 264, https://www.ilo.org
/dyn/natlex/docs/ELECTRONIC/83557/92354/F1549605860/YEM83557.pdf.
50

U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2016 Country
Reports on Human Rights Practices – Yemen, at 44 (2016), http://www.state.gov/j
/drl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265528
(“Yemen
Country Report”).
51

Ben Gladstone, For Yemen’s gay community social media is a savior, The
Irish Times (Aug. 22, 2015), http://www.irishtimes.com/news/world/middleeast/for-yemen-s-gay-community-social-media-is-a-saviour-1.2324447.
52

Yemen Country Report, supra n.50, at 42-43.
16

ARGUMENT
I.

THE UNIQUE HARDSHIPS IMPOSED ON LGBTQ POPULATIONS
BY THE PROCLAMATION ARE CONTRARY TO U.S. LAW AND
AGAINST THE PUBLIC INTEREST
A.

Constitutional And Federal Law Emphasize The Importance Of
Family Reunification And Marriage

The public interest in protecting family units, both LGBTQ and otherwise, is
enshrined in constitutional law. As the Supreme Court has long recognized, the
right to marry is fundamental. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978)
(“[T]he right ‘to marry, establish a home and bring up children’ is a central part of
the liberty protected by the Due Process Clause.” (citation omitted)). In Obergefell
v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), the Court made clear that these
rights extend to LGBTQ people. 135 S. Ct. at 2604 (“The right to marry is a
fundamental right inherent in the liberty of the person, and under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment couples of the samesex may not be deprived of that right and that liberty.”).
The right to marry regardless of sexual orientation inheres in all persons
within the United States, not just U.S. citizens. See Meyer v. Nebraska, 262 U.S.
390, 399 (1923) (the right “to marry, establish a home and bring up children” is a
central part of the liberty protected by the Due Process Clause); Zadvydas v. Davis,
533 U.S. 678, 693 (2001) (“the Due Process Clause applies to all ‘persons’ within

17

the United States, including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent”).
The United States’ commitment to enabling families to live together is also
embodied in its visa policies, which provide special allowances for familysponsored visas.

See, e.g., 8 U.S.C. § 1153(a)(2) (allowing legal permanent

residents to sponsor spouses, children, and unmarried sons or daughters).
Members of the LGBTQ community may normally avail themselves of such
family reunification visas to assist family members living abroad, including those
suffering persecution in countries that discriminate against LGBTQ people. For
example, LGBTQ individuals might apply for admission on a K-1 “fiancé(e)” visa,
which allows the K-1 visa applicant’s sponsor in the United States to petition the
government to bring the applicant to the United States to be married.53
Immigration law must take family unity into account because “[p]ublic
policy supports recognition and maintenance of a family unit.” Solis-Espinoza v.
Gonzales, 401 F.3d 1090, 1094 (9th Cir. 2005) (“The Immigration and Nationality
53

See U.S. Dep’t of State, Bureau of Consular Affairs, Nonimmigrant Visa for
a Fiancé(e) (K1), https://travel.state.gov/content/visas/en/immigrate/family/fiancek-1.html (last visited Nov. 16, 2017); U.S. Citizenship and Immigration Services,
K-1 Process: Step by step, https://www.uscis.gov/family/k-1-process-step-step (last
visited Nov. 16, 2017). Once approved, the applicant must submit significant
documentation, including proof to substantiate the applicant’s relationship with his
or her fiancé(e) in the United States, to a U.S. Consulate or Embassy, participate in
an in-person interview, and submit to a medical examination. Id.
18

Act (‘INA’) was intended to keep families together. It should be construed in
favor of family units and the acceptance of responsibility by family members.”);
see also INS v. Errico, 385 U.S. 214, 220 (1966) (“Congress felt that, in many
circumstances, it was more important to unite families and preserve family ties
than it was to enforce strictly the quota limitations or even the many restrictive
sections that are designed to keep undesirable or harmful aliens out of the
country.”).54
Moreover, the value of family unification is an important limitation on
deportation proceedings, wherein the Government is required to consider
“humanitarian or public interest considerations,” including the “compelling
humanitarian interest in keeping families united.” United States v. Raya-Vaca, 771
F.3d 1195, 1207-08 (9th Cir. 2014) (citing cases).

54

Congress recognized in enacting and amending the INA that the immigration
system is designed to preserve family units. See H.R. Rep. No. 85-1199, at 2
(1957) (the “legislative history of the [INA] clearly indicates that Congress
intended to provide for a liberal treatment of children and was concerned with the
problem of keeping families of United States citizens and immigrants united.”);
H.R. Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952) (the INA implements “the
underlying intention of our immigration laws regarding the preservation of the
family unit”); cf. Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977) (“[T]he legislative
history of the provision at issue here establishes that congressional concern was
directed at ‘the problem of keeping families of United States citizens and
immigrants united.’ To accommodate this goal, Congress has accorded a special
‘preference status’ to certain aliens who share relationships with citizens or
permanent resident aliens.”).
19

The United States has further recognized that the public interest includes
consideration of LGBTQ families by its ratification of the International Covenant
on Civil and Political Rights (“ICCPR”) in 1992. 138 Cong. Rec. S4781-01 (daily
ed. Apr. 2, 1992). 55 Specifically, in ratifying the ICCPR, the United States
recognized that its domestic law incorporates the fundamental precept that “the
family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.” ICCPR, art. 23, § 1. That principle obligates
the United States to recognize the right of a family to live together, and to adopt
appropriate measures “to ensure the unity or reunification of families, particularly
when their members are separated for political, economic or similar reasons.”56
B.

“Familial Relations” Should Be Construed Broadly To Give
Equal Dignity To LGBTQ Families

In both the immigration context and throughout the law, policies protecting
and valuing family reunification and “familial relations” should cover all families

55

Even if the ICCPR is not a self-executing treaty, the United States declared
that “U.S. law generally complies with the Covenant[.]” S. Exec. Report 102-23
(102d Cong., 2d Sess.). Ratified treaties — even without implementing legislation
— remain the supreme law of the land. See U.S. Const. art. VI, cl. 2. Thus, the
ICCPR may be a “useful guide” to interpret domestic law. See Khan v. Holder,
584 F.3d 773, 783 (9th Cir. 2009) (a treaty that does not have force of law
nonetheless serves as a “useful guide” in interpreting other provisions of law)
(citation omitted).
56

Human Rights Committee, General Comment No. 18, para. 6, U.N. Doc.
HRI/GEN/1Rev.1, at 26 (1994).
20

— including embracing kinship arrangements that, due to discriminatory legal
barriers, cultural factors, or circumstance, do not fit the traditional nuclear family
model. A narrow conception of “family” that is limited to immediate legal or
genetic family, as is the case for the “close familial relationship” waivers under the
Proclamation, see Section II infra, fails to account for the lived experiences of
many LGBTQ families.

Accordingly, a narrow construction of familial

relationships would cause concrete harms for LGBTQ individuals by excluding
from admission to the United States in-laws, extended family and others whose
relationships are no less “close” or “bona fide” than traditional nuclear family
members.
For instance, same-sex marriage and step-parent or joint adoption of children
by same-sex couples are not permitted in any of the eight countries.57 As a result,
LGBTQ families in these countries may be made up of permanent partners, parents,
and children who are not legally recognized as belonging to the same family.58
Moreover, many LGBTQ people, disowned by immediate family because of their
sexual or gender identity, are raised by grandparents or other extended family, or
form their own supportive networks with legally unrelated people. Indeed, many
57

See World Survey, supra n.3, at 68-77 (surveying countries that recognize
marriage and adoption by same-sex couples).
58

See Obergefell, 135 S. Ct. at 2595 (discussing the legal patchwork that
precluded adopted children of LGBTQ families from claiming two legal parents).
21

LGBTQ people are forced to flee violence and oppression from their families of
origin because of their sexual or gender identity.

To the extent they have

“traditional” family members in the United States, they may be unwilling or unable
to draw upon those relationships.
In this country, too, non-nuclear families are increasingly common. As the
Supreme Court noted seventeen years ago, “[t]he demographic changes of the past
century make it difficult to speak of an average American family.

The

composition of families varies greatly from household to household.” Troxel v.
Granville, 530 U.S. 57, 63 (2000).

The number of people living in multi-

generational or skipped-generation families in the United States has doubled in
recent decades.59 Likewise, many LGBTQ individuals in the United States rely on
“families of choice” or alternative family structures for the support that their
biological families are unable or unwilling to provide.60 The Supreme Court has
acknowledged that such non-traditional families are no less worthy of protection.
59

See Richard Fry & Jeffrey S. Passel, In Post-Recession Era, Young Adults
Drive Continuing Rise in Multi-Generational Living, Pew Research Center (July
17, 2014), http://www.pewsocialtrends.org/2014/07/17/in-post-recession-erayoung-adults-drive-continuing-rise-in-multi-generational-living/ (“A record 57
million Americans . . . lived in multi-generational family households in 2012,
double the number who lived in such households in 1980.”).
60

See generally Soon Kyu Choi & Ilan H. Meyer, LGBT Aging: A Review of
Research Findings, Needs, and Policy Implications, Los Angeles: The Williams
Institute (Aug. 2016), http://williamsinstitute.law.ucla.edu/wp-content/uploads/
LGBT-Aging-A-Review.pdf.
22

“Ours is by no means a tradition limited to respect for the bonds uniting the
members of the nuclear family.” Moore v. City of E. Cleveland, Ohio, 431 U.S.
494, 503 (1977) (association with extended family members is constitutionally
protected); see also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.
537, 545-46 (1987) (the Constitution “protects those relationships, including
family relationships, that presuppose deep attachments and commitments to the
necessarily few other individuals with whom one shares not only a special
community of thoughts, experiences, and beliefs but also distinctively personal
aspects of one’s life”) (citations omitted). In the immigration context, the reason
for this flexibility is simple: the “humane purpose of the [INA] to reunite families
would be frustrated” by an overly strict interpretation of who is considered a
family member. Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir. 1980)
(father was not required to prove under the strict laws of his home country his
relationship with his child born out of wedlock; the “purpose of the Act . . . is to
prevent continued separation of families”).
As the District of Hawaii recently observed, “context matters” when
defining familial relationships.61 Recognizing that families do not look the same
everywhere, the UNHCR has advocated, with respect to family reunification, that
61

Order, Hawaii v. Trump, No. 1:17-cv-00050-DKW-KSC, 2017 WL 2989048,
at 12 (D. Haw. July 13, 2017).
23

“[e]conomic and emotional ties should be given the same weight in reunification as
relationships based on blood ties or legally sanctioned unions.” 62 International
humanitarian law supplies a context-sensitive approach, “recogniz[ing] that a
family consists of those who consider themselves and are considered by each other
to be part of the family, and who wish to live together.”63
LGBTQ people come to the United States to achieve formal recognition and
protection for their often unconventional families. A broad construction of “family”
serves the public interest in family reunification and avoids perpetuating the
policies that prevent LGBTQ people in the eight countries from realizing co-equal
status in society.
II.

THE PROCLAMATION CONTRAVENES U.S. LAW AND POLICY,
WHICH ACCEPT LGBTQ INDIVIDUALS AS IMMIGRANTS
Many LGBTQ individuals apply for visas to permanently relocate to the

United States, including the spouses, parents, children, and fiancés of U.S. citizens,
residents, and asylees. The Proclamation shuts down visa processing for certain

62

Kate Jastram & Kathleen Newland, Family unity and refugee protection,
Refugee Protection in International Law: UNHCR’s Global Consultations on
International Protection 586 (Erika Feller, et al. eds., 2003) (citing UNHCR,
Background Note: Family Reunification in the Context of Resettlement and
Integration, Annual Tripartite Consultations on Resettlement, Geneva 2 (June
2001)), http://www.unhcr.org/419dbf664.html.
63

Id. at 585-86 (citing Commentary to the Additional Protocols of the 1949
Geneva Conventions).
24

visa applicants from the eight countries. P.P. § 2(c). While the Proclamation
allows for certain case-by-case exceptions to the ban on issuing visas, including “to
visit or reside with a close family member” in the case of “undue hardship,” the
waiver provisions provide no indication — much less assurance — that LGBTQ
visa applicants will be recognized as permitted to proceed under that narrow and
perhaps illusory exception, as discussed infra. P.P. § 3(c)(iv)(D).
The public policy goal of family reunification would be thwarted if the
Proclamation were to take effect, by preventing U.S. citizens and residents from
sponsoring U.S. visa applications of LGBTQ family members located in the eight
countries. The Proclamation would deprive those U.S.-based family members of
the fundamental right to family reunification, the very policy the INA was
designed to accomplish. See Solis-Espinoza, 401 F.3d at 1094.
For example, the Proclamation would impair U.S. citizens and residents
whose fiancés or partners are located in the eight countries from exercising the
fundamental right to marry, as their partners may be prohibited from obtaining a
K-1 “fiancé(e)” visa to visit the United States. See P.P. § 3(c). That harm is
exacerbated for same-sex couples because those individuals cannot travel to one of
the eight countries to be married, as those countries do not recognize same-sex
marriages. By the same token, U.S. children and family members of same-sex
couples, unable to marry because they are stranded in one of the eight countries,
25

would be uniquely deprived of the ability to form a legally-recognized family, and
thus would be forced to bear “the stigma of knowing their families are somehow
lesser” because their families receive unequal treatment under the Proclamation.
See Obergefell, 135 S. Ct. at 2600. The Proclamation would thus be an extension
of the same context-blind immigration policies that have disparately impacted
LGBTQ immigrants and their families.64 Although same-sex couples can utilize
immigration benefits previously available only to opposite-sex couples, other
avenues for family reunification remain closed or only available after surmounting
additional hurdles. For instance, proving a parent-child relationship is significantly
complicated, if not impossible, for a de facto parent who by the law of her country
of origin cannot adopt or gain legal custody of her child, or marry the child’s

64

As the Supreme Court has recognized, the federal government until only
very recently categorically discriminated against LGBTQ people in the
immigration context by, among other things, making homosexuality grounds for
inadmissibility and by refusing to recognize same-sex spouses. See, e.g.,
Obergefell, 135 S. Ct. at 2596 (noting that gays and lesbians have been “excluded
under immigration laws”); Boutilier v. INS, 387 U.S. 118 (1967) (determining that
the INA’s exclusion of aliens afflicted with “psychopathic personality” was
intended by Congress to exclude homosexuals from admission); Bassett v. Snyder,
59 F. Supp. 3d 837, 849 (E.D. Mich. 2014) (“The federal government categorically
discriminated against gays and lesbians in immigration until 1990, barring all gay
and lesbian noncitizens from entering the United States. . . . And the [INA]
labeled gay and lesbian people as mentally ill.” (citations omitted)).
26

biological parent.65 And given that in-laws are a “clear” example of close family,
see Trump v. International Refugee Assistance Project, ___ U.S. ___, 137 S. Ct.
2080, 2088 (2017), no same-sex couples in the eight targeted countries have
legally recognized or documented in-law relationships, unless they were married in
a country that recognizes their relationships.66
The Proclamation indefinitely delays the ability of LGBTQ foreign nationals
to leave the eight countries, even though some of these individuals could have
strong cases to obtain visas by virtue of their familial relationships with U.S.
citizens or residents. Moreover, if LGBTQ visa applicants in the eight countries
are forced to wait an indefinite period of time for the visa process to resume, they
will be waiting in hostile political and social environments.

Each day the

Proclamation suspends the processing of visa applications, deserving visa
applicants will be exposed to the likelihood of violence — and the certainty of
discrimination — in the eight countries.

65

See, e.g., 8 U.S.C. §§ 1101(b)(1), (c)(1) (defining “child” to include a
genetic child, a stepchild by marriage, a child legitimated by law, or an adopted
child in the adoptive parent’s legal custody).
66

These examples illustrate how the Proclamation, even with waivers for
“close family members,” is too narrow to protect LGBTQ individuals’ close family
relationships.
27

III.

THE PROCLAMATION’S WAIVER PROVISIONS FAIL TO
MITIGATE THE HARMS THE PROCLAMATION INFLICTS ON
LGBTQ INDIVIDUALS
The Proclamation’s waiver provisions for visa-seekers do little to mitigate

the harms LGBTQ individuals would face if the Proclamation were allowed to go
into effect.

The Proclamation allows for waivers of the suspension on visa-

issuance for individuals with a “close familial relationship” to someone living in
the United States, including fiancés and immediate in-laws. 67
The notion that the Government will issue a significant number of waivers to
LGBTQ individuals from the eight affected countries, however, begs credulity in
light of the Administration’s determination that the waiver provisions may only
apply to “close familial relationships” that are “formal” and “documented.”68 As
discussed above, LGBTQ individuals, whose familial relationships are often
legally unrecognized in their countries of origin — and therefore are unlikely to be
formal, much less documented — will suffer a disproportionate and unjustified
restriction on their ability to qualify for visas under the terms of the Proclamation.
Moreover, the Proclamation is sharply limited so as to preclude visa applications
based on relationships with “extended” family members, even though that
67

U.S. Dep’t of State, Court Order on Presidential Proclamation on Visas
(Oct.
17,
2017),
https://travel.state.gov/content/travel/en/news/importantannouncement.html.
68

Id.
28

definition perpetuates the outdated, context-blind definition of familial
relationships that fails to effectuate, and here would undermine, the purposes of
U.S. immigration law. 69 Thus, in contrast to similarly situated non-LGBTQ
persons whose relationships are officially recognized in the eight affected countries,
LGBTQ persons stand to be disproportionately excluded from the Proclamation’s
waiver provisions.
Furthermore, waivers are unlikely to offer real protection even to those visaapplicants who can document a basis for the waiver. Neither the Proclamation nor
the Administration has provided visa-seekers with meaningful guidance on the
criteria that will be used in considering waiver applications. Instead, applicants are
left with the cold comfort that a consular officer or Customs and Border Protection
official “may, in their discretion, grant waivers on a case-by-case basis.” P.P.
§ 3(c). An applicant must prove to that official’s subjective satisfaction that
“denying entry would cause [him or her] undue hardship,” that he or she “would
not pose a threat to the national security or public safety of the United States” and
that his or her “entry would be in the public interest.” P.P. § 3(c)(i). This vague
language is insufficient, and could be easily abused, creating further uncertainty as
to whether LGBTQ persons may obtain these waivers.

69

See supra, Section I.B.
29

Moreover, the fact that the waiver provisions require LGBTQ individuals to
reveal information about their sexual orientation or gender identity to consular
officers, and possibly the consulate’s staff (often consisting of foreign nationals),
poses additional dangers beyond those typically faced by LGBTQ persons seeking
to travel to the United States. The resulting chilling effect on LGBTQ persons’
willingness to apply for admission to the United States would only compound their
suffering in the eight countries — and the suffering of their American relatives
here. The waiver provisions therefore do not diminish any of the special risks and
dangers imposed by the Proclamation on LGBTQ people.
CONCLUSION
For all the reasons stated above, Amici Curiae respectfully request that this
Court affirm the order of the District of Maryland, enjoining the Government from
enforcing the Proclamation.
(signature appears on following page)

30

Respectfully submitted,
/s/ Eric J. Gorman
Eric J. Gorman
Counsel of Record
Jennifer H. Berman
Skadden, Arps, Slate,
Meagher & Flom LLP
155 North Wacker Dr. Suite 2800
Chicago, IL 60606
[phone]
[e-mail]
Matthew E. Sloan
Richard A. Schwartz
Allison B. Holcombe
Alyssa J. Clover
Brittany Ellenberg
Skadden, Arps, Slate,
Meagher & Flom LLP
300 South Grand Ave. Suite 3400
Los Angeles, CA 90071
[phone]
[e-mail]
Noelle M. Reed
Sarah Grossnickle
Jonathan Fombonne
Skadden, Arps, Slate,
Meagher & Flom LLP
1000 Louisiana Street Suite 6800
Houston, TX 77002
[phone]
[e-mail]
Joseph M. Sandman
Skadden, Arps, Slate,
Meagher & Flom LLP
1440 New York Ave., N.W.
Washington, D.C. 20005
[phone]

Aaron Morris
Immigration Equality
40 Exchange Place Suite 1300
New York, NY 10005
[phone]
[e-mail]
Virginia M. Goggin
New York City Gay And Lesbian
Anti-Violence Project
116 Nassau Street Floor 3
New York, NY 10038
[phone]
[e-mail]
Glenn Magpantay
The National Queer Asian Pacific
Islander Alliance
233 Fifth Avenue Suite 4A
New York, NY 10016
[phone]
[e-mail]
Attorneys for Amici Curiae
Immigration Equality, The New York
City Gay And Lesbian Anti-Violence
Project, The National Queer Asian
Pacific Islander Alliance, The LGBT
Bar Association of Los Angeles, The
LGBT Bar Association of Greater
New York, the Lesbian and Gay Bar
Association of Chicago, GLBTQ
Legal Advocates & Defenders, and
Bay Area Lawyers for Individual
Freedom

CERTIFICATE OF COMPLIANCE
This brief complies with the typeface requirements of Rule 32(a)(5) and the
type style requirements of Rule 32(a)(6) because it is prepared in a proportionally
spaced typeface in Microsoft Word using 14-point Times New Roman typeface
and with the type-volume limitation of Rule 29(a)(5) because it contains 6,358
words.

/s/ Eric J. Gorman
Eric J. Gorman

CERTIFICATE OF SERVICE
I hereby certify that on November 17, 2017, I electronically filed the
foregoing document with the Clerk of the Court for the United States Court of
Appeals for the Fourth Circuit by using the appellate CM/ECF system.
Participants in the case are registered CM/ECF users, and service will be
accomplished by the appellate CM/ECF system.

/s/ Eric J. Gorman
Eric J. Gorman