State of Washington, et al v. Donald J. Trump, et al

Filing 133

Received original and 1 copy of Amicus Curiae - Pending Daniel O. Escamilla amicus brief in 11 pages. Served on 02/08/2017. Deficiencies: None. Reason not filed: motion to become amicus is pending. [10309179] (LA) [Entered: 02/09/2017 02:11 PM]

RECEIVED
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

='x.3092017

No. 17-35105
AILED
nOCKETED
DATE

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees
V.

DONALD TRUMP, President of the United States, et al.,
Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON

BRIEF OF AMICUS CURIAE
DANIEL O. ESCAMILLA
IN SUPPORT OF DEFENDANT-APPELLANTS

Daniel O. Escamilla
888 W. Santa Ana Blvd., Suite 100
Santa Ana, CA 92701
Telephone: [phone]
Facsimile [phone]
Email: [e-mail]
Amicus curiae, in pro se

INITIAL.

•

Li

TABLE OF CONTENTS
RELEVANT FACTS ..................~..............................r .................................... l
ARGUMENT.................................................................................................... 2
I.

BECAUSE THERE HAS BEEN A DETERMINATION OF
THE LIKELIHOOD OF SUCCESS ON THE MERITS THE
COURT MUST NECESSARILY CONSIDER THE MERITS
OF THE CAUSE IN THIS MATTER ......................................... 2

II.

THE EXECUTIVE ORDER IS NOT REVIEWABLE AS A
MATTER OF LAW SINCE THE FINDINGS OF THE
EXECUTIVE ARE BASED ON MATTERS OF NATIONAL
SECURITY, OSTENSIBLY CLASSIFIED AND NOT
SUBJECT TO REVIEW BY THE JUDICIARY ........................ 3

•

•

III. THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT, BY ITS PLAIN LANGUAGE, DOES NOT
RESTRICT THE PRESIDENT OR PRECLUDE EXECUTIVE
ORDER ISSUED BY PRESIDENT ............................................ 4

i

IV. THE EQUAL PROTECTION CLAUSE OF THE
FOURTEETH AMENDMENT, BY ITS PLAIN LANGUAGE,
DOES NOT APPLY TO THE FEDERAL GOVERNMENT,
INCLUDING THE EXECUTIVE BRANCH .............................. 5
V.

0

•

•

THE EXECUTIVE'S ACTION TO TEMPORARILY HALT
IMMIGRATION OF A PARTICULAR CLASS OF
IMMIGRANTS FOR REASONS OF NATIONAL SECURITY
OR FOR THE MARSHALLING OF RESOURCES TO
IMPROVE THE EFFECTIVENESS OF THE IMMIGRATION
SCREENING PROCEDURE IS WITHIN THE
EXECUTIVE'S PLENARY POWER ......................................... 6

•
TABLE OF CONTENTS (cont.)
VI.

0

•

THE--POLICY-OF TEMPORARY IMMIGRATION
SUSPENSION IS SOUND AND, IF REVIEWABLE BY THE
COURTS ON CONSTITUTIONAL GROUNDS, THE
PRESIDENT'S DETERMINATION TO SUSPEND
ADMISSION OF SYRIAN REFUGEES SHOULD BE
DEEMED PROPER TO ACHIEVE A PROPER
GOVERNMENTAL OBJECTIVE .............................................. 8

CONCLUSION................................................................................................. 10

•

CERTIFICATE OF COMPLIANCE ................................................................ 12
CERTIFICATE OF SERVICE ......................................................................... 13

•
•
r

•
•
•

0

0

TABLE OF AUTHORITIES
U.S. Constitution
1st Amendment ...... ...... ................................... .................................. 5

r

14th Amendment ..................................................................................... 5, 6
U.S. Federal Cases

•

Bolling v. Sharpe
347 U.S. 497 (1954) ..................................................................... 5
Title 8 of the United State Code (Immigration and Nationality Act)
8 U.S.C. § 212(f) ..................................................................................... 3, 6
8 U.S.C. § 217(a)(12) ............................................................................. 1

Federal Rule of Appellate Procedures (FRAP)
Rule29(a) ............................................................................................... 2

9

Secondary Sources
Mark Hosenball, Reuters, Trump gets one presidential intelligence brief
a week: sources" December 9, 2016, http://www.reuters.com/article/ususa-trump-briefings-idUSKBN I 3X2M9 ..........................................................3, 4

40

r
•

Jie Zong and Jeanne Batalova. Frequently Requested Statistics on
Immigrants and Immigration in the United States, April 14, 2016,
http://www.migrationpolic ,g/article/frequentiy-requested-statisticsimmigrants-and-immigration-united-states ...................................................... 7
Roy Beck, an immigration author with one of the most viewed
immigration policy presentation on the Internet, Immigration, World
Poverty and Gumball — Numbers USA. com
https://www.voutube.com/watch?v=LPjzfOChG1E ......................................... 7, 8
Jens Manuel Krogstad and Jynnah Radford, Key facts about refugees to
the U.S. Pew Research Center. http://www.pewresearch.org/ facttank/2017/01/30/key-facts-about-refugees-to-the-u-s/ ..................................... 10

iv

•

•

•

RELEVANT FACTS
Prior to the Trump Administration, in 2015 and after the San Bernardino
terrorism attack, Congress passed section 217(a)(12) of the Immigration and
Nationality Act (INA) which imposes additional restrictions on travel to the US by
persons who have traveled to regions of the world with significant terrorist

•

presence. The statute specifically names Iraq and Syria and provides a process
whereby further countries can be added. At present, five others are also on the list:

•

Iran, Libya, Somalia, Sudan, and Yemen.
Seven (7) days into office, on January 27, 2017, President Donald J. Trump
issued an Executive Order (EO): Protecting the Nation from Foreign Terrorist

•

Entry into the United States.
Insofar as is relevant to this amicus brief, the EO (at Section 3) suspends

•

entry into the US for 90-days, of immigrants from the list of countries referred to
in section 217(a)(12) of the INA.
The EO (at Section 5) also suspends U.S. Refugee Admissions Program

C~
(USRAP) for 120 days, indefinitely suspends Syrian refugees based on a
proclamation that "the entry of nationals of Syria as refugees is detrimental to the
•

interests of the United States." Finally, the EO caps the total refugee admissions
for fiscal year 2017 to 50,000.

•
ii
•

•
The States of Washington and Minnesota sought and received, on February

•

3, 2017, a Temporary Order from the U.S. District Court for the Western District

•

of Washington, preventing implementation of the EO. The Trump Administration,
through the Department of Justice, has filed an appeal with the Ninth Circuit Court
of Appeal on February 4, 2017.

•

ARGUMENT

•

I.
BECAUSE THERE HAS BEEN A DETERMINATION OF THE
LIKELIHOOD OF SUCCESS ON THE MERITS THE COURT MUST
NECESSARILY CONSIDER THE MERITS OF THE CAUSE IN THIS
MATTER
The temporary order of the District Court required a finding of the

•

likelihood of success on the merits. On appeal, as Plaintiff argued during oral
argument, Appellant must establish the likelihood of success on appeal.
Absent a dispositive threshold issue (such as standing), the Court is therefore

•,

justified in addressing the merits of the underlying action of Plaintiff's challenge to
the President's Executive Order: Protecting the Nation from Foreign Terrorist
0
Entry into the United States.
Federal Rule of Appellate Procedures (FRAP) Rule 29(a) permits amicus
•

filings during a court's initial consideration of a case on the merits.
/1/

2

•

•
0

II.

0

THE EXECUTIVE ORDER IS NOT REVIEWABLE AS A MATTER OF
- LAW -SINCE TFIE FINDINGS -OF- T4E EXECUTIVE ARC BASED ON
MATTERS OF NATIONAL SECURITY, OSTENSIBLY CLASSIFIED AND
NOT SUBJECT TO REVIEW BY THE JUDICIARY
There is undeniable statutory authority under the Immigration and
Nationality Act, permitting the president to suspend any class of aliens upon a

•

finding that their entry would be "detrimental to the interest of the United States."
Whenever the President finds that the entry of any aliens or of any class of
aliens into the United States would be detrimental to the interests of the
United States, he may by proclamation, and for such period as he shall deem
necessary, suspend the entry of all aliens or any class of aliens as immigrants
or nonimmigrants, or impose on the entry of aliens any restrictions he may
deem to be appropriate. Title 8, U.S.C. § 212(f).

•

Facts relating to the president's determination of any national security risk or

•

as to a particular class of aliens, does not lend itself to judicial review because such

•

determinations would necessarily implicate matters of national security which are
classified and provided only to the president who, as head of the executive branch,
is charged with the protection of our national security.
The classified information is generally provided to the president by the

10

President's Daily Brief (PDB), considered the most highly classified and closely

r

held document in the government, prepared on a regular basis.' PDBs are
presented to presidents and their closest aides by representatives of the Office of
Mark Hosenball, Reuters, Trump gets one presidential intelligence brief a week:
sources" December 9, 2016, http://www.reuters.com/article/us-usa-trumpbriefings-idUSKBN13X2M9

1

•

•

•
•

the Director of National Intelligence (ODNI), though material in them is prepared
by the CIA, the National Security Agency, the Defense Intelligence Agency and

•

other parts of the U.S. intelligence community.2
It is reasonable to presume that an investigation of risk posed by a particular
class of aliens must include not only the history of domestic incidents of terrorism

•

committed by the particular class, but also the international incidents as well. The
assessment of risk may also include foiled attempts to commit acts of terrorism

•

which may only be known to those in the intelligence community.
It is indisputable that this information, provided by the intelligence

•

community to the Executive Branch, places the president and his advisors in the
best position to assess and address the national security risk posed by any
particular class of aliens. The president's exercise of plenary power, ostensibly

•

based on classified information complied by our intelligence community, should
not be second-guessed by the judiciary.

•

III.
THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT, BY ITS
PLAIN LANGUAGE, DOES NOT RESTRICT THE PRESIDENT OR
PRECLUDE EXECUTIVE ORDER ISSUED BY PRESIDENT

•

The Establishment Clause of the First Amendment, provides in relevant part,
that "Congress shall make no law respecting an establishment of religion..."

•

(Bold added for emphasis.) The plain language of the First Amendment limits its
2

Ibid.
4

•
•

application of the Establishment Clause to laws enacted by Congress and not to
Executive Orders of the President. Accordingly, the president's Executive Order,

•

even it is treated as a law and demonstrates preference of one religion over another,
cannot be deemed unconstitutional as in violation of the Establishment Clause.
IV.

•

THE EQUAL PROTECTION CLAUSE OF THE FOURTEETH
AMENDMENT, BY ITS PLAIN LANGUAGE, DOES NOT APPLY TO THE
FEDERAL GOVERNMENT, INCLUDING THE EXECUTIVE BRANCH
Section 1 of the Fourteenth Amendment provides:

•

•

•

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws
(emphasis added).
By its terms, the equality requirement of the 14th Amendment, whether
derived from the Equal Protection Clause or the Privileges or Immunities Clause,
and the Due Process Clause of the 14`h Amendment, restrains only state

•

governments and not the federal government. (See Bolling v. Sharpe 347 U.S. 497
(1954) [holding that the 14th Amendment applies only to states]).

•

Even if the protections afforded by the 14th Amendment did apply against
the federal government, because alien immigrants are neither citizens of the United
States, nor within the jurisdiction of any State within the United States, they are

0

not within the class of persons entitled to 14th Amendment protections.
5

•

•
•
•

•

V.
THE EXECUTIVE'S ACTION TO TEMPORARILY HALT
4MMIGRATION OF A PARTICULAR CLASS OF IMMIGRANTS FOR
REASONS OF NATIONAL SECURITY OR FOR THE MARSHALLING
OF RESOURCES TO IMPROVE THE EFFECTIVENESS OF
THE IMMIGRATION SCREENING PROCEDURE IS WITHIN THE
EXECUTIVE'S PLENARY POWER
While the scope of the terror threat by a particular class of aliens may not be
fully known to those outside of the president's National Security Council, the
potentially catastrophic consequences of such a terror threat weighs in favor of

•

cautious action by the president. Indeed Congress has vested the president with
broad powers to exercise his discretion to "suspend the entry of all aliens or any

•

class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate" for "such period as he shall deem
necessary..." under the Immigration and Nationality Act, Title 8, U.S.C. § 212(f),

•

Given the expansive scope of immigration to our country and the daunting
task of screening immigrants, the exercise of the Executive's plenary power to

0

maintain our national security and to properly manage of our nation's immigration
screening process justifies the Executive's temporary or permanent suspension of a

•

particular class or classes of aliens in order to protect the nation from foreign
terrorist entry. The stated purpose for this suspension is to "temporarily reduce
investigative burdens on relevant agencies during the review period..."

•
•

•
According to the Migration Policy Institute, during the last decade just over

•

1 million persons annually, have lawfully immigrated to the United States. In 2014,

•

California had the highest number of total immigrants of any state, with 10.5
million. This comprised 27 percent of the total state population. Almost one-half
(49 percent) of all children in California under the age of 18, were living with

•

immigrant parents.3
Immigration takes a toll on our nation's infrastructures and may add to our

•

troubling domestic issues such as homelessness, unemployment and the
availability of health care. The negative ramifications of unchecked immigration
have led many to advocate a policy of helping the impoverished in their own

•

country and discouraging immigration to the United States. 4

•

' Jie Zong and Jeanne Batalova. Frequently Requested Statistics on Immigrants and
Immigration in the United States, April 14, 2016,
http://www migrationpolicy org/article/frequently-requested-statistics-immigrantsand-immigration-united-states
Roy Beck, an immigration author with one of the most viewed immigration policy
presentation on the Internet, Immigration, World Poverty and Gum ball —
NumbersUSA.com,4 advocates helping impoverished people in their own country,
discouraging immigration to the United States. His reasoning is sound:

4

•

•

•

Allowing immigration may even hurt the impoverished people of the world
because the 1 million immigrants that we do take are among the most
energetic, often the better educated, certainly the most dissatisfied people
that if they did not immigrate, would be the aegis for change to improve the
lot of all the people in their countries. The true heroes in the global
humanitarian field are the people in the [impoverished] countries who have
the wherewithal to immigrate to another country but instead stay in their
7

•
•

While Congress enacts laws regulating the admission of immigrants to the
United States, the Executive is charged with the orderly administration of our

•

country's immigration and has been empowered to suspend the entry of aliens as he
as in his Executive Order. This power to manage the immigration process by
allocating its personnel resources in a manner which, in the determination of the

•

Executive, best serves the national interest, should not be subject to interference by
the Courts.

•
0

VI.
THE POLICY OF TEMPORARY IMMIGRATION SUSPENSION IS
SOUND AND, IF REVIEWABLE BY THE COURTS ON
CONSTITUTIONAL GROUNDS, THE PRESIDENT'S DETERMINATION
TO SUSPEND ADMISSION OF SYRIAN REFUGEES SHOULD BE
DEEMED PROPER TO ACHIEVE A PROPER GOVERNMENTAL
OBJECTIVE
Many of the amicus briefs filed in this matter argue the constitutionality of

0

the Executive Order and advocate a particular policy of immigration rather than
addressing the legal issues surrounding the executive's prerogative to suspend

•

immigration pending a revision of security screening measures.
Even if the Courts were to apply the strict scrutiny test to the constitutional

•
•

challenges made to the Executive Order, there is certainly a compelling
countries to ply their skills to help their fellow countrymen. Unfortunately,
our immigration system tends to entice these very types of people to
abandon their countrymen."
https://www.youtube.com/watch?v=l.PizfGChG]E
s

•

•
•

governmental interest in both national security and responsible immigration policy,
either of which would outweigh any individual rights that are being raised. Further,
limiting the suspension to the particular class of aliens rather than an across-theboard suspension of immigrant and refugee admissions, demonstrates that the
Executive Order is narrowly tailored to achieve the government's objectives of

•

protecting the nation from foreign terrorist entry.
Section 5 of the EO (Realignment of the U.S. Refugee Admissions Program

•

for Fiscal Year 2017), which suspends the entry of Syrian refugees, is supported by
the presidential proclamation that "the entry of nationals of Syria as refugees is
detrimental to the interests of the United States..." (at Section 5(c)) and that "entry

•

of more than 50,000 refugees in fiscal year 2017 would be detrimental to the
interests of the United States..."
Placing a reasonable 50,000-person limitation on refugee immigration is the

•

prerogative of the Executive and consistent with good management of the nation's

•

infrastructure and national security. The Obama administration had announced a
goal of admitting 110,000 refugees in fiscal 2017, which would have been the
highest number of refugees admitted since 1994. The 50,000 limit on refugee

•
Jens Manuel Krogstad and Jynnah Radford, Key facts about refugees to the U.S.
Pew Research Center. http://www.pewresearch.org/fact-tank/2017/01/30/key-factsabout-refugees-to-the-u-s/
5

•

9

•

•
•

immigration is reasonable from a historical context and is calculated to achieve the
approximate figures of our most recent Republican administration:

•
•
•
•

•

-•

..

___•

i

.
17

It the Court rejects the lletenclant-Appellant's challenge to Flaintitt's
standing, a consideration of the merits of Plaintiff's argument challenging the

•

Executive Order is proper. On the merits, the facts upon which the Executive
Order is based, since they involve ostensibly classified matters of national security,
are not subject to review by the Courts. The President's plenary power permits the

•

immigration and national security actions taken by the Executive Order and the
Plaintiff is not entitled to constitutional protection, as against the Executive, under

•

the Establishment Clause.

10

•

•
0

Plaintiff is also not entitled to invoke the protections under the 14th
Amendment for the protection of non-citizens who are outside of the jurisdiction of

•

any State of the United States. Even if a strict scrutiny test were applied, the
Plaintiffs fail to establish that the Executive Order is unconstitutional.
Finally, with regard to the limits placed on refugees, the Executive Order is

•

in line with the approximate number of refugees permitted by the most recent
Republican administration.

•

For the reasons set forth herein, and to support the president's efforts to
protect national security and effectively manage immigration procedure as

•

permitted by the Immigration and Nationality Act, Section 212(f), this amicus
urges the Court to grant Appellant-Defendant's Emergency Motion.
DATED: February 8, 2017

•
•
•

Respectfully submitted,

Dani O. Es cam illa
888 W. Santa Ana Blvd., Suite 100
Santa Ana, CA 92701
Telephone: [phone] x80
Facsimile [phone]
Email: dan(a')escamilla.com
Amicus curiae, in pro se

•
11

•

0

CERTIFICATE OF COMPLIANCE

0

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned individual, appearing pro se, certifies that this amicus curiae brief:

0

(i) Complies with the typeface requirements of Rule 32(a)(5) and the type
style requirements of Rule 32(a)(6) because it has been prepared using Microsoft

0

Office Professional Plus 2013 and is set in Times New Roman font in a 14-point
size and,

•

(ii) Complies with the length requirement of Rule 29(a)(5) because it is 11
pages.
DATED: February 8, 2017

•

Respectfully submitted,
v'l

•
C

Daniel O. Esc am illa
888 W. Santa Ana Blvd., Suite 100
Santa Ana, CA 92701
Telephone: [phone] x80
Facsimile [phone]
Email: dan(a;escamilla.com
Amicus curiae in pro se

•
•
12

0

•
C

CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, a true and correct copy of the
foregoing: BRIEF OF AMICUS CURIAE DANIEL O. ESCAMILLA, PRO SE IN

•

SUPPORT OF DEFENDANT-APPELLANTS with first class postage prepaid has
been deposited in the U.S. Mail in Santa Ana, California, and properly addressed to
the persons whose names and addresses are listed below.

•

•
C

Noah G. Purcell
Washington Attorney General's Office
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(Courtesy copy e-mailed to [e-mail])
Noel J. Francisco
Acting Solicitor General, U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(Courtesy copy e-mailed to Noel [e-mail])

•
•

DATED: February 8, 2017

Edward Parker
888 W. Santa Ana Blvd., Suite 100
Santa Ana, CA 92701
Telephone: [phone] x80
Facsimile [phone]

•
•
r

13

•