Intl. Refugee Assistance v. Donald J. Trump

Filing 98

MOTION by International Law Scholars and Nongovernmental Organizations to file amicus curiae brief (FRAP 29(e)) with consent of all parties on appeal within time allowed by FRAP 29(e).. Date and method of service: 11/17/2017 ecf. [1000194724] [17-2231, 17-2232, 17-2233, 17-2240] Amanda Callais [Entered: 11/17/2017 04:37 PM]

Nos. 17-2231(L), 17-2232, 17-2233, 17-2240 (Consolidated)
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; JOHN DOES #1 AND 3; JANE DOE #2;
MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on
behalf of itself and its members; MUHAMMED METEAB; PAUL HARRISON;
IBRAHIM AHMED MOHOMED; ARAB AMERICAN ASSOCIATION OF
NEW YORK, on behalf of itself and its clients

Plaintiffs-Appellees,
and ALLAN HAKKY; SAMANEH TAKALOO
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
DEPARTMENT 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.
[Caption continued on inside cover]
CONSENT MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN
SUPPORT OF PLAINTIFFS-APPELLEES’ RESPONSE BRIEF
Aaron X. Fellmeth
Arizona State University
Sandra Day O’Connor College of
Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
Telephone: [phone]
[e-mail]

Bruce V. Spiva
Elisabeth C. Frost
Amanda R. Callais
Perkins Coie LLP
700 13th Street, NW, Suite 600
Washington. DC 20005
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Proposed Amici Curiae

________________________________
No. 17-2231(L)
On Cross-Appeal from the United States District Court for the District of
Maryland, Southern Division
(8:17-cv-00361-TDC)
___________________
No. 17-2232
(8:17-cv-02921-TDC)
________________________________
IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1, JANE DOE #2,
JANE DOE #3, JANE DOE #4, JANE DOE #5, JANE DOE #6,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States;
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland
Security; KEVIN K. MCALEENAN, in his official capacity as Acting
Commissioner of U.S. Customs and Border Protection; JAMES MCCAMENT, in
his official capacity as Acting Director of U.S. Citizenship and Immigration
Services; REX TILLERSON; JEFFERSON B. SESSIONS III, in his official
capacity as Attorney General of the United States,
Defendants – Appellants.
________________________________
No. 17-2233
(1:17-cv-02969-TDC)
________________________________
EBLAL ZAKZOK; SUMAYA HAMADMAD; FAHED MUQBIL; JOHN DOE
#1; JOHN DOE #2; JOHN DOE #3,
Plaintiffs – Appellees

INTRODUCTION
Non-party international law scholars and nongovernmental organizations
(“Proposed Amici”) hereby move for leave to file an amicus curiae brief in support
of Plaintiffs-Appellees’ Response Brief (Dkt. 89). Proposed Amici specialize in
areas of international law involving the rights of aliens and refugees, and the
obligations of the United States under various treaties and international covenants
to which it has acceded, jurisprudence which the movants respectfully submit
could assist the Court in assessing the legality of the Presidential Proclamation
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into
the United States by Terrorists or Other Public-Safety Threats of September 24,
2017 (“Proclamation”), apparently superseding Executive Order 13780 of March 6,
2017 (“EO”), which replaces the now-rescinded Executive Order dated January 27,
2017. The amicus brief that Proposed Amici request be considered is attached as
Exhibit A.
IDENTITY AND INTEREST OF PROPOSED AMICI CURIAE
The eighty-five international law scholars include practitioners and tenured
faculty members at law schools in the United States who have devoted extensive
efforts to the study and practice of international law. See Appendix A to Proposed
Amicus Brief (listing all Amici). They research, teach, speak, and publish widely
on international law issues, and they routinely advise and practice in matters

1

addressing

such

issues

before

American

courts.

The

nongovernmental

organizations join the international law scholars as Proposed Amici.

The

nongovernmental organizations collectively are experts in civil rights law,
immigration law, and international human rights law.
As scholars and practitioners in the area, Proposed Amici have a strong
interest in ensuring that the Court reaches a decision that conforms to the existing
body of international law.
ARGUMENT
A.

This Court Should Allow the Participation of Proposed Amici Curiae
This Court has “broad discretion” to appoint amici curiae.

Skokomish

Indian Tribe v. Goldmark, No. C13-5071JLR, 2013 WL 5720053, at *1 (W.D.
Wash. Oct. 21, 2013) (Robart, J.). Submission of an amicus brief is valuable to the
Court because it “suggests the interpretation and status of the law, gives
information concerning it, and advises the Court in order that justice may be done
. . . .” Cmty. Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bros. Dairy, 54 F.
Supp. 2d 974, 975 (E.D. Wash. 1999). District courts normally allow amicus
briefs when the amicus has “unique information or perspective that can help the
court beyond the help that the lawyers for the parties are able to provide.” Id.
Amicus participation is particularly appropriate where, as here, the ramifications of
the decision extend beyond the parties directly involved. Sierra Club v. BNSF Ry.

Co., No. C13-967-JCC, 2016 U.S. Dist. LEXIS 124269, at *5 (W.D. Wash. Sept.
13, 2016).
B.

The Amicus Brief Will Help the Court Assess the Legality of the
Executive Order Under Domestic and International Law
Proposed Amici possess unique information and perspectives that can help

this Court understand the impacts the Proclamation will have on the United States’
international relations and its ability to honor its international law obligations—
ramifications that extend beyond the individuals directly involved in this case.
The United States is party to several treaties and international covenants that
address issues that are immediately and urgently raised by the Proclamation,
including for example, provisions in the Proclamation making distinctions based
on national origin. Proposed Amici respectfully submit that the accompanying
amicus brief, by describing the rights and obligations established by those
instruments, may assist the Court in assessing the legality of the Proclamation
under both international and U.S. domestic law. Under the U.S. Constitution, of
course, “all Treaties made . . . under the Authority of the United States, shall be the
supreme Law of the Land.” U.S. Const., Art.VI, cl. 2. Moreover, even if the
international covenants identified in the amicus brief do not independently or
directly compel the Court to invalidate the Proclamation, they should inform the
Court’s interpretation of governing statutes based on well-established canons of
statutory construction. The attached amicus brief may also illuminate the ways in

which the international community will assess the Proclamation in light of
customary international law, which will in turn affect how other nations view and
deal with the United States across a wide range of issues, including cooperation on
national security matters.
C.

The Amicus Brief is Timely, Filed in Support of Plaintiffs-Appellees’
Response Brief
This Court issued an Order on October 31, 2017, see Dkt. 52, requiring that

any amicus curiae brief in support of Plaintiffs-Appellees be filed by November
17, 2017. The instant motion and accompanying brief are filed on November 17,
2017. Accordingly, this submission by Proposed Amici is timely.
D.

Plaintiffs-Appellees and Defendants-Appellants Consent to the Filing of
the Amicus Brief
Proposed Amici have obtained Plaintiffs-Appellees’ and Defendants-

Appellants’ consent to the filing of the attached amicus brief. Proposed Amici
therefore submit this motion for leave to file their amicus brief in satisfaction of
the Federal Rules of Appellate Procedure. Fed. R. Civ. P. 29(a).
CONCLUSION
Proposed Amici respectfully request permission to file the attached amicus
curiae brief in support of Plaintiffs-Appellees.
RESPECTFULLY SUBMITTED this 17th day of November, 2017

By: s/ Aaron X. Fellmeth
Aaron X. Fellmeth
Arizona State University
Sandra Day O’Connor College of
Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
Telephone: [phone]
[e-mail]

By: s/ Amanda R. Callais
Bruce V. Spiva
Elisabeth C. Frost
Amanda R. Callais
Perkins Coie LLP
700 13th Street, NW, Suite 600
Washington. DC 20005
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

Counsel for Proposed Amici Curiae

CERTIFICATE OF SERVICE
I certify that on November 17, 2017 the forgoing document was served on
all parties or their counsel of record through the CM/ECF system if they are
registers users or, if they are not, by serving a true and correct copy by First Class
U.S. Mail at the address listed below:
Hashim M. Mooppan
U.S. Department of Justice
Civil Division, Appellate Section
950 Pennsylvania Avenue, NW
Washington, DC 20530-0000
Respectfully Submitted,

Dated:

s/ Amanda R. Callais
Amanda R. Callais

November 17, 2017