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

Filing 159

Submitted (ECF) Amicus brief for review and filed Motion to file oversized brief. Submitted by The Foundation for the Children of Iran and Iranian Alliances Across Borders. Date of service: 02/16/2017. [10322616] [17-35105]--[COURT UPDATE: Updated docket text to reflect content of filing. 02/16/2017 by LA] (Martin, Kevin) [Entered: 02/16/2017 12:39 PM]

No. 17-35105
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF
HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F.
KELLY, Secretary of the Department of Homeland Security; UNITED STATES
OF AMERICA,
Defendants-Appellants.
On Appeal from the Issuance of a Temporary Restraining Order by the U.S.
District Court for the Western District of Washington, No. 2:17-cv-00141-JLR
BRIEF FOR THE FOUNDATION FOR THE CHILDREN OF IRAN AND
IRANIAN ALLIANCES ACROSS BORDERS AS AMICI CURIAE IN
SUPPORT OF PLAINTIFFS-APPELLEES AND IN OPPOSITION TO
EN BANC RECONSIDERATION
Kevin P. Martin
Nicholas K. Mitrokostas
William B. Brady
Joshua M. Daniels
Eileen L. Morrison
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: [phone]
Fax.: [phone]
Dated: February 16, 2017

CORPORATE DISCLOSURE STATEMENT
As required by Fed. R. App. P. 26.1(a), the undersigned counsel states that
amici curiae The Foundation for the Children of Iran and Iranian Alliances Across
Borders are both nonprofit organizations that each have no parent company and
have not issued any stock.

s/ Kevin P. Martin
Kevin P. Martin
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: [phone]
Fax.: [phone]
Counsel for Amici Curiae The
Foundation for the Children of Iran and
Iranian Alliances Across Borders
Dated: February 16, 2017

(i)

TABLE OF CONTENTS
Page
INTEREST OF THE AMICI CURIAE ...................................................................... 1 
BACKGROUND ....................................................................................................... 4
I. 

Azar and Ahmad .................................................................................... 5 

II. 

Banu and Basir ...................................................................................... 7 

III.   Dr. David Overman ............................................................................... 8 
IV.   Dalir ...................................................................................................... 9 
SUMMARY OF ARGUMENT ............................................................................... 12 
ARGUMENT ........................................................................................................... 13 
I.  

The Executive Order’s Travel Ban Is Irrational.................................. 13 
A. 

Preexisting Screening Procedures for Persons from the
Seven Restricted Countries to Enter the United States
Are Robust and Thorough.........................................................13

B.

The List of Countries Singled Out by the Executive Order’s
Travel Ban Lacks a Rational Connection to the Asserted
Reasons for the Ban. .............................................................. 17

II. 

The List of Countries Singled Out by the Executive Order’s
Travel Ban Lacks a Rational Connection to the Asserted
Reasons for the Ban............................................................................. 17 

III. 

The President’s Statutory Authority Under Section 212(f) of the
INA Does Not Justify the Executive Order......................................... 24 

CONCLUSION ........................................................................................................ 28 
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
(ii)

TABLE OF AUTHORITIES
Page(s)
Cases
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ......................................................................................21, 24
Dep’t of Revenue of Or. v. ACF Indus., Inc.,
510 U.S. 332 (1994) ............................................................................................ 25
Fleming v. Mohawk Wrecking & Lumber Co.,
331 U.S. 111 (1947) ............................................................................................ 27
Jimenez v. Weinberger,
417 U.S. 628 (1974) ............................................................................................ 14
Mathews v. Diaz,
426 U.S. 67 (1976) .............................................................................................. 13
McDonnell v. United States,
136 S. Ct. 2355 (2016) ........................................................................................ 26
Merrifield v. Lockyer,
547 F.3d 978 (9th Cir. 2008) .............................................................................. 14
Miller v. Alabama,
132 S. Ct. 2455 (2012) ........................................................................................ 21
Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................................ 14
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................................ 19
Ruiz-Diaz v. United States,
703 F.3d 483 (9th Cir. 2012) .............................................................................. 13
Rust v. Sullivan,
500 U.S. 173 (1991) ............................................................................................ 28
U.S. Dep’t of Agriculture v. Moreno,
413 U.S. 528 (1973) ......................................................................................14, 15
(iii)

Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ............................................................................................ 28
Statutes
8 U.S.C. § 101 .......................................................................................................... 27
8 U.S.C. § 1151 ........................................................................................................ 27
8 U.S.C. § 1153 ........................................................................................................ 27
8 U.S.C. § 1182(a) .............................................................................................25, 26
8 U.S.C. § 1182(f) .............................................................................................passim
8 U.S.C. § 1201(g) ................................................................................................... 15
Other Authorities
22 C.F.R. § 41.31(a)(3) ............................................................................................ 16
51 Fed. Reg. 30,470 (Aug. 22, 1986) ...................................................................... 27
Executive Order No. 13769 ..............................................................................passim
Fed. R. App. P. 29 ..................................................................................................... 1
Norman Singer & Shambie Singer,
2B Sutherland Statutes and Statutory
Construction § 49:3 (7th ed. 2016) ............................................................... 27

(iv)

INTEREST OF THE AMICI CURIAE1
Amicus The Foundation for the Children of Iran (FCI) is a 501(c)(3)
organization that helps arrange health-care services, including life-saving
treatments, for Iranian children and children of Iranian origin.

Based in

Bloomington, Minnesota, FCI relies on a global network of volunteers to serve the
needs of as many children as possible, regardless of race, creed, religious belief, or
political affiliation. Essential to FCI’s mission is the ability of children residing in
Iran and their parents to travel to the United States on non-immigrant visas over
the course of several years to obtain the critical treatment that they need.
Amicus Iranian Alliances Across Borders (IAAB) is a 501(c)(3)
organization based in New York City that seeks to strengthen America’s Iranian
diaspora community through leadership and educational programming that
encourages collaboration and solidarity across borders and multiple communities.
IAAB includes over a thousand members of Iranian descent or nationality and
works by empowering members of the Iranian diaspora community to deepen
connections with their new communities while continuing to maintain their roots.
These activities rely in large part on the ability of IAAB members to travel
1

No parties’ counsel authored this brief in whole or in part, no party or its counsel
contributed money intended to fund preparation or submission of this brief, and no
person other than amici or their counsel contributed money that was so intended.
Fed. R. App. P. 29(a)(4)(E). Amici describe their authority to file in the
concurrently filed motion in accordance with Fed. R. App. P. 29.

between the United States and Iran, including on non-immigrant student visas.
The Executive Order at the heart of this case, Executive Order No. 13769
(“Executive Order” or “the Order”), poses a grave threat to amici and their
respective missions.

Among other things, with certain limited exceptions for

government officials, the Executive Order bars any Iranian national (as well as
nationals of Iraq, Libya, Somalia, Sudan, Syria and Yemen, with whom amici
stand in solidarity) from entering the United States for a period of at least 90 days.
See Executive Order, § 3(c). Those affected by the Order, before it was enjoined
by the district court below, have included Iranian nationals who are lawful
permanent residents of the United States as well as those who were previously
allowed to enter the United States on student, work or visitor visas. Many of
amici’s members and other constituents, as well as their relatives and friends, have
found their ability to travel severely curtailed as a result. Those who happened to
be within the United States when the Executive Order was issued found themselves
unable to leave for fear of being denied reentry or subjected to lengthy detention
upon their return. Others who were traveling abroad found themselves stranded in
airports worldwide, unable to return to their family or work commitments in the
United States. For some, the consequences of the Executive Order’s restrictions
could be severe: for the children served by amicus FCI, for example, their ability
to travel to the United States for life-saving medical care is a matter of life-or-

2

death.
The district court’s February 3, 2017 order in this case brought temporary
relief from the chaos that immediately followed the Order’s issuance, a respite that
the February 9, 2017 panel decision wisely left in place.

Since the panel’s

decision, however, a judge of this Court has requested a vote on whether the
panel’s decision should be reconsidered en banc, and the Court has directed that
issue to be briefed. Should the en banc Court decide to stay the effectiveness of
the district court’s order, the grave harms visited upon the Iranian community
residing in or traveling to the United States—including amici’s members and other
constituents—will resume unabated.
Given both the vital importance of the legal questions presented to their
members and other constituents, amici have a strong interest in seeing the district
court’s order providing preliminary relief upheld, and are well-positioned to
explain why that result is the correct one. To that end, amici have included in this
brief not only legal arguments, but also personal stories of Iranians concerning the
extensive screening procedures to which they already were subjected before
entering the United States, and the harm that these individuals suffered and will

3

continue to suffer under the Executive Order if it survives.2
BACKGROUND
On January 27, 2017, President Trump issued the Executive Order which,
inter alia, suspended entry and the issuance of visas to nationals from seven
countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The avowed
“[p]urpose” of the Executive Order is “to protect Americans” by “ensur[ing] that
those admitted to this country do not bear hostile attitudes toward it and its
founding principles.” Executive Order, § 1. Purportedly to that end, the Executive
Order institutes a 90-day ban on the “immigrant and nonimmigrant entry into the
United States of aliens from” the seven countries while the Departments of State
and Homeland Security as well as U.S. intelligence officials undertake a “review”
of the United States’ current visa-application and issuance process. Id., § 3(a)-(c).
As the following personal stories that have been relayed to amici
demonstrate, however, nationals from these countries, including children seeking

2

For the safety of these individuals and their families, the italicized names used in
this brief are pseudonyms. Given the heightened tension surrounding these issues,
as well as the reported threats made against individuals associated with these
proceedings, e.g., federal judges connected to this case, these individuals are
understandably fearful about revealing their identities. See Evan Perez, et al.,
Threats Against Judges in Immigration Ban Cases Leads to Increased Security,
CNN (Feb. 9, 2017), available at http://www.cnn.com/2017/02/09/politics/judgesthreatened-immigration-order (visited Feb. 15, 2017). These individuals also fear
retaliation by Iran’s government and its supporters should they be publicly
identified as beneficiaries of American charities and organizations such as amici.
4

medical attention and students from Iran, already must undergo an extensive and
lengthy vetting process to obtain visas to enter the United States. The Executive
Order nevertheless bars those who have cleared that existing screening process
from entry, and has thereby caused tremendous stress and terrible disruption to
these individuals and their families.
I.

Azar and Ahmad
Azar and her husband live in Iran with their teenage daughter and eight-year-

old son, Ahmad.3 Ahmad suffers from a univentricular heart. Azar and Ahmad first
came to the United States on B-2 visitor visas when Ahmad was three-years-old
because Ahmad required treatment not available in Iran—a surgery called the
Fontan procedure.
Obtaining those visitor visas was a difficult process. First, only Azar and
Ahmad could receive visas, separating the family while Azar and Ahmad traveled
to the United States. In FCI’s experience, the United States will grant only one
parent (typically the mother) a visa to enter the United States out of fear that, if
both parents are granted visas, they will not return to Iran. Therefore, as with all of
FCI’s beneficiaries, FCI recommended that only the mother and child seek visitor
visas.

3

As described supra, note 2, the identities of Iranian nationals have been
anonymized using pseudonyms.
5

Second, Azar and Ahmad were both required to travel to the American
embassy in Dubai for an interview because the United States does not maintain an
embassy or consulate in Iran. Besides the documents described infra at 15-17,
Azar also brought, inter alia, documentation regarding FCI’s financial support of
Azar and Ahmad, which included a place to stay while in the United States, and
medical documentation detailing Ahmad’s medical condition and the lack of
treatment options in Iran. Azar was required to return to the embassy four times
with additional documentation before she and Ahmad were finally issued visas.
Azar stayed in Dubai for over a month in an effort to obtain a life-saving visa for
her sick child.
Ahmad’s first surgery in the United States was a success, but it was only the
first of a planned series, as is typical with the Fontan procedure. Ahmad required
significant post-operative recovery time. Azar and Ahmad stayed in the United
States for four months and then returned to Iran. Four years later, when Ahmad
was seven-years-old, he was scheduled for his next surgery. Again Azar was
required to travel with Ahmad to Dubai for an interview. This time, a woman
working at the embassy told Azar that, because Azar was not a resident of Dubai,
she could not obtain a visa from the embassy in Dubai. After much uncertainty
and anguish, this misunderstanding was resolved and Azar was able to obtain visas

6

for herself and Ahmad. Azar and Ahmad traveled again to the United States, where
they stayed for three months after Ahmad’s surgery.
Ahmad is now eight-years-old. Azar and Ahmad traveled to the United
States a third time in November 2016 for another surgery. Ahmad is currently
recovering from that surgery and doctors expect that he will require a fourth soon.
Azar and Ahmad’s visas expire in May 2017. Azar longs to be reunited with her
husband and daughter in Iran but now fears that if she and Ahmad leave the
country they will not be permitted to return for the next surgery.
II.

Banu and Basir
Banu, her husband, daughter and son Basir live in Iran. Basir was born in

late 1998 with a congenital heart defect that resulted in a lack of oxygen in his
blood. Banu and her husband consulted the best Iranian doctors, but none in Iran
could help Basir or could keep him alive. Their only hope was in the United
States.

Banu contacted FCI, which assisted Banu with the visa-application

process.
Banu, her husband and Basir traveled to the U.S. embassy in Turkey for
Banu and Basir’s interviews when Basir was still an infant. Basir was extremely
sick and required constant oxygen and medication during the interview process.
Banu and Basir were issued visas and traveled to the United States for
Basir’s surgery. At 44-days-old, Basir was so sick that he was greeted by an

7

ambulance at the airport gate and immediately transported to the hospital. Basir’s
surgery was successful but his recovery was lengthy. Banu’s visa was valid for
only three months, and therefore she needed to return to Iran. FCI was able to
assist Banu’s husband with obtaining a visa so that he could be with Basir during
the remainder of Basir’s recovery.
Basir returned to the United States in 2012 for an anticipated additional
surgery and recovered well. Today, Basir is an eighteen-year-old student at the
best university in Iran. He enjoys playing soccer and is a chess champion. After
his 2012 surgery, however, doctors anticipated that he would need additional
surgery in another five to ten years—between 2017 and 2022—and Basir is now
within that window. He is under the care of doctors in Iran, who consult with U.S.
physicians as needed. Although Basir’s condition is currently stable, it is difficult
to predict when in the next five years he will need his additional surgery. FCI,
Banu and Basir are concerned that the Executive Order could prevent Basir from
receiving further life-saving surgery should an urgent need arise during the 90-day
travel ban.
III.

Dr. David Overman
Dr. David Overman is Chief of the Division of Cardiovascular Surgery at

Children’s Hospitals and Clinics of Minnesota and a staff surgeon. His clinical
interests include the surgical management of congenital heart disease. He has

8

specific expertise with hypoplastic left heart syndrome and complex neonatal
repairs, as well as aortic root disease and the Ross Procedure.
Dr. Overman is Medical Director of Children’s HeartLink, a nongovernmental organization that builds partnerships between pediatric cardiac
programs in the developing world and in North America and Europe. Dr. Overman
began working with FCI in early 1999 when he operated on Basir. Since then, Dr.
Overman has operated on approximately 15 Iranian children brought to the United
States by FCI. Some of these children, like Basir, require close monitoring and
multiple surgeries.
Dr. Overman’s role with FCI involves evaluating the medical records of
potential beneficiaries to determine whether they may be good candidates for
treatment in the United States, performing surgery on these beneficiaries if they do
come to the United States, and working remotely with doctors in Iran to monitor
their conditions. Dr. Overman is concerned that if the Executive Order remains in
place, it will interfere with his ability to offer necessary treatment to his patients.
IV.

Dalir
Dalir is a Ph.D. chemistry student in the Midwestern United States. As an

Iranian, he counts himself lucky to have obtained a student visa to enter the United
States. As with all student visa applicants, Dalir was first required to obtain
acceptance at an American university. He was accepted in 2015 and immediately

9

applied for an F-1 (student) visa for himself and an F-2 (dependent) visa for his
wife. After submitting the necessary applications, photographs and fees, he made
an appointment for them to travel to Dubai to be interviewed at the U.S. embassy.
At his interview, he presented, inter alia, his research plan, statement of purpose,
certificate of marriage and bank statements. He and his wife were fingerprinted.
Two months later, they received their visas. Dalir was pleasantly surprised that
they received multiple-entry visas; in Dalir’s experience, most Iranian students
receive only single-entry visas, which are valid for five years. Because their visas
are multiple-entry visas, however, they are valid for only two years (until the
summer of 2017).
Dalir and his wife arrived in the United States for the fall semester 2015.
By the end of 2016, they had not been to Iran for over one year and missed their
families. They decided to return to Iran for the winter holidays. Dalir could stay
only two weeks due to his academic demands. His wife, not being a student, could
stay longer and planned to return to the United States in February. After hearing
rumors of a forthcoming travel ban, however, Dalir immediately called his wife
and rescheduled her return. His wife was in the air, attempting to reunite with her
husband, when President Trump signed the Executive Order.
His wife’s itinerary took her from Iran to Chicago via Frankfurt. She
landed in Frankfurt shortly after the Executive Order was signed. Two hours into

10

her layover, the airline informed her that she would not be allowed to board her
flight to Chicago due to the Executive Order and put her on a plane back to Iran.
The next week was extremely difficult for Dalir and his wife. Both feared
that they would not be able to see one another again unless Dalir quit his Ph.D.
program. Dalir’s worry that he would not be reunited with his wife prevented him
from concentrating on his studies. For six days, he desperately followed the news.
He was aware of the TRO issued by a federal district court in Boston, but also
knew that airlines were not allowing Iranian visa holders to board planes bound for
the United States. When Dalir learned that Lufthansa was allowing Iranian visa
holders to board planes bound for Boston, he immediately called his wife. Dalir
had told her to pack her bags and be prepared to leave. It was 2 am in Iran, but he
convinced his wife to get to the airport for a 7 am flight. Dalir booked her ticket
and she immediately left for the Tehran airport. Simultaneously, Dalir began a
seventeen-hour car ride to Boston.
Dalir arrived in Boston just as his wife’s flight was landing. As he waited at
the international arrivals area, Dalir grew concerned when he did not see his wife
for several hours, despite seeing other passengers exit customs. She emerged three
hours after landing, following secondary screening.
Dalir and his wife got back into the car and drove another seventeen hours
home. The travel ban had significant impacts on Dalir’s studies—e.g., he delayed

11

one of his seminars that was scheduled to take place during the six days when he
was trying to bring his wife back into the United States—which he continues to
work with his university to resolve. Although Dalir and his wife may lawfully
remain in the United States until Dalir completes his Ph.D. program, they fear that
they will be unable to obtain additional visas when their current visas expire,
leaving them potentially unable to visit their families for three years.
SUMMARY OF ARGUMENT
The Executive Order cannot satisfy even the comparatively less demanding
rational-basis standard of review. The United States’ preexisting visa-application
process and other screening procedures are already aimed specifically at the
problems that the Executive Order purportedly seeks to solve—preventing
terrorism inside the United States. As described by the compelling stories above
from the amici’s members and other constituents, these visa-application procedures
are stringent, even for a newborn baby seeking a visa to the United States for lifeor-death surgery. The irrationality of the travel ban is further confirmed by the list
of countries singled out by the Executive Order, which is both under-inclusive and
over-inclusive in relation to the national origins of the perpetrators of the recent
terrorist attacks that allegedly provide the justification for the ban.
There are statutory as well as constitutional flaws with the travel ban.
Although the Executive Order relies on 8 U.S.C. § 1182(f) for its purported

12

authority to exclude all nationals of seven countries, a holistic reading of that
statute refutes that claim. That provision states that the President may “suspend
the entry of all aliens or any class of aliens as immigrants or nonimmigrants,” but
does not define “classes of aliens.” Another part of the same section defines
multiple “classes of aliens”—but none by reference to immutable characteristics
such as nationality. Reading the statute as a whole, 8 U.S.C. § 1182(f) does not
permit the President to bar entire nationalities without some individualized
consideration of applicants for admission. Because the Executive Order exceeds
the proper scope of the President’s statutory authority, it cannot stand.
ARGUMENT
I.

The Executive Order’s Travel Ban Is Irrational.
A.

Preexisting Screening Procedures for Persons from the Seven
Restricted Countries to Enter the United States Are Robust and
Thorough.

Even acknowledging that the political branches of the federal government
have comparatively “broad power over naturalization and immigration,” Mathews
v. Diaz, 426 U.S. 67, 79-80 (1976), any distinction that the federal government
may wish to draw between noncitizens based on national origin still must satisfy at
least “rational basis” review. See, e.g., Ruiz-Diaz v. United States, 703 F.3d 483,
486-87 (9th Cir. 2012).

Because the Executive Order’s travel ban operates

selectively with respect to only certain foreign nationals, depending on their

13

national origin, it must be supported by at least some “assurance that the
classification at issue bears some fair relationship to a legitimate public purpose.”
Plyler v. Doe, 457 U.S. 202, 216 (1982). While comparatively less demanding
than other standards of review in federal constitutional law, the rational-basis
standard is far from a meaningless rubber stamp on the actions of the political
branches. See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 636-37 (1974) (striking
down provision of the Social Security Act as not rationally connected to
provision’s asserted purpose); U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528,
534-36 (1973) (striking down as irrational statute withholding food stamps to
households with unrelated members); Merrifield v. Lockyer, 547 F.3d 978, 992
(9th Cir. 2008) (striking down exemption from pesticide-control regulations as
irrational).
The problem the travel ban has in satisfying this standard is the fact that, as
alluded to by the personal experiences recounted above, the United States’
preexisting visa-application process and other screening procedures have been in
place all along, and are “aimed specifically at the problems” that the Executive
Order’s travel ban purportedly seeks to solve. Moreno, 413 U.S. at 536. Indeed,
the Executive Order acknowledges that these procedures were already tightened
significantly in response to the September 11 attacks. See Executive Order, § 1.
“The existence of these provisions necessarily casts considerable doubt upon the

14

proposition that the [travel ban] could rationally have been intended to prevent
those very same [harms].” Moreno, 413 U.S. at 536-37.
The United States government currently employs stringent standards
regarding the admission of most nonimmigrants into the United States. When
foreign nationals wish to enter the United States, they first must obtain visas unless
they are from one of only 38 visa-waiver countries where a visa is not required for
stays of 90 days or less for tourism or business reasons (and even then, only if they
are not also a national of Iraq, Iran, Syria, or Sudan). U.S. Dep’t of State, Visa
Waiver Program, available at http://travel.state.gov/content/visas/en/visit/visawaiver-program.html (visited Feb. 15, 2017).

The process for obtaining a

nonimmigrant visa to the United States is lengthy, expensive and difficult—
particularly for Iranian Americans. Over 45 percent of Iranian B-visa seekers were
denied visas in Fiscal Year 2016.4 See U.S. Dep’t of State, Adjusted Refusal
Rate—B-Visas Only By Nationality Fiscal Year 2016, available at http://travel.
state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/
FY16.pdf (visited Feb. 15, 2017).
Applicants for nonimmigrant visas must complete an application, submit
photographs, pay an application fee and schedule an interview at a U.S. embassy or
4

In FCI’s experience, the Department of State denies many Iranian visa seekers’
applications for incomplete applications or supporting documentation. See 8
U.S.C. § 1201(g).
15

consulate. U.S. Dep’t of State, Student Visa, available at http://travel.state.gov/
content/visas/en/study-exchange/student.html (visited Feb. 15, 2017) (applicable to
F-1 and F-2 visa applicants); U.S. Dep’t of State, Visitor Visa, available at http://
travel.state.gov/content/visas/en/visit/visitor.html

(visited

Feb.

15,

2017)

(applicable to B-2 visa applicants, including those seeking medical treatment). The
application form itself is lengthy, asking for information such as a list of all of the
countries the applicant has entered in the last ten years and all professional, social
and charitable organizations to which the applicant has belonged or contributed, or
with which the applicant has worked. Applicants seeking visas for medical reasons
additionally must submit an invitation letter from the hospital and doctors
providing treatment, medical documentation describing the illness (translated) and
a letter from a doctor stating the reasons why the planned treatment cannot or
should not be performed in Iran or a neighboring country such as Turkey. Many
FCI beneficiaries also require affidavits of support from sponsors if the
beneficiaries cannot afford to travel with their own funds, lest the consular official
determine their personal financial situation to be insufficient.
§ 41.31(a)(3).

See 22 C.F.R.

Because the United States does not maintain an embassy or

consulate in Iran, Iranian nationals seeking visas to enter the United States must
travel to a third country for their interviews. Travel to that third country (for
example, the United Arab Emirates), also requires a visa. Applicants must bring

16

significant documentation with them to their visa interviews, including six months
of bank statements (translated and officially stamped).

Applicants are also

fingerprinted during their interviews.
In this litigation, the government has never suggested what further screening
processes might be put into place at the end of the 90-day review period that would
improve upon those already in place for nationals of the seven countries. Indeed,
and as discussed in the following section, the evidence is that the existing
procedures are working insofar as adult nationals from these countries have not
traveled to the United States and participated in terrorist attacks in the past two
decades. In the absence of identified problems with the existing screening process
for persons from these countries and with no indication that a “solution” to the
non-existent problems is forthcoming, there is at a minimum a reasonable
likelihood that plaintiffs will succeed in establishing that the Executive Order lacks
a rational basis.
B.

The List of Countries Singled Out by the Executive Order’s
Travel Ban Lacks a Rational Connection to the Asserted Reasons
for the Ban.

The rationality of the Executive Order’s travel ban also is in doubt because
of the manner in which it operates. The ban is both selective—targeting only
foreign nationals from the seven referenced countries—but at the same time broad,
prohibiting any alien from those countries from entering the United States, even

17

minors, and regardless of the grounds on which that entry is sought: for work, for
study, for resettlement as a refugee fleeing an active war zone, for medical
treatment that is unavailable in their home countries, or for short-term visits with
family members residing in the United States.

See Executive Order, § 3(c).

Viewing the Executive Order’s selective travel ban in light of the Order’s stated
reasons for it, the ban’s arbitrary harshness presents a second, independent reason
why it lacks a rational basis.
The Executive Order stated justification for barring the entry of all foreign
nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen is the concern
that any national from those countries might commit terrorist acts in the United
States, perhaps at the behest of terrorist organizations, and the Executive Order
points to the “[n]umerous foreign-born individuals [that] have been convicted or
implicated in terrorism-related crimes since September 11, 2001” as support.
Executive Order, § 1.

The problem, however, is that those “foreign-born

individuals” and incidents lend no support to the Executive Order’s selective and
discriminatory ban.

Indeed, the list of seven countries whose nationals the

Executive Order has singled out bears little or no correlation to the places from
which those who have attempted or committed terrorist attacks within the United

18

States have hailed over the last 16 years.5
To begin, the Order is over-inclusive. Romer v. Evans, 517 U.S. 620, 632
(1996) (laws fail rational basis review where their “sheer breadth is so
discontinuous with the reasons offered for it that [they] seem[] inexplicable by
anything but animus toward the class [they] affect[]”). There have been only a
handful of persons who originally hail from some of the seven countries the
Executive Order singles out and who have carried out or attempted to carry out
terrorist plots since 9/11 that did not result in fatalities. These include one carramming attack carried out in 2006 by an Iranian-American lawful permanent
resident (“LPR”) in Chapel Hill, North Carolina in 2006;6 an unsuccessful plot by a
Somali-American who planned to bomb a Christmas tree lighting in Portland,
Oregon in 2010;7 an attack involving multiple stabbings by a Somali-American at a
5

Defendants have argued in this case and elsewhere that Congress and the prior
administration identified these seven countries as ones presenting “terrorismrelated concerns,” and that the Executive Order merely adopts that prior
determination and enhances the security measures with regard to those countries.
E.g., Defs. Emergency Stay Mot. at 5-6 (Dkt. No. 14). But neither Congress nor
the prior administration banned nationals from those countries from entering the
United States for any period of time, as the Executive Order does.
6

Jessica Rocha, et al., Suspect Says He Meant to Kill, Charlotte News & Observer
(Mar. 8, 2006), available at http://web.archive.org/web/20081013151023/
http://www.newsobserver.com/news/v-print/story/415421.html (visited Feb. 15,
2017).
7

US ‘Foils Oregon Bomb Plot’, ALJAZEERA (Nov. 27, 2010), available at http://
www.aljazeera.com/news/americas/2010/11/2010112764714953451.html (visited
Feb. 15, 2017).
19

shopping mall in St. Cloud, Minnesota in 2016;8 and another car-ramming attack
carried out by a Somali-American LPR at Ohio State University in 2016.9
To put these four individuals in broader perspective, there are
approximately 500,000 persons of Iranian ancestry and 130,000 persons of Somali
ancestry living in the United States, according to 2011 American Community
Survey data.10 These incidents also offer no reason whatsoever for the inclusion of
the other five countries in the Executive Order’s travel ban. Moreover, even with
respect to these four incidents, there is no credible basis for believing that the
Executive Order’s travel ban, sweeping as it is, would have done anything to
prevent them. Two of the four incidents—the 2006 car-ramming attack and the
2010 bomb plot—involved naturalized U.S. citizens who immigrated to the United
States as young children and lived here for many years before engaging in

8

FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act of
Terrorism, CHI. TRIB. (Sept. 18, 2016), available at http://www.chicagotribune.
com/news/nationworld/ct-minnesota-mall-stabbing-20160918-story.html (visited
Feb. 15, 2016).
9

Islamic State Group Claims Ohio State University Rampage, BBC (Nov. 30,
2016), available at http://www.bbc.com/news/world-us-canada-38151669 (visited
Feb. 15, 2017).
10

See U.S. Census Bureau, 2011 American Community Survey 1-Year Estimates:
Total Ancestry Reported (Dec. 22, 2012), available at http://ia601608.us.archive.
org/26/items/2011AmericanCommunitySurveyAncestry/2011Acs.pdf (visited Feb.
15, 2017).
20

terrorism.11 The individuals at the center of the other two incidents reportedly also
came to the United States as children—one at age seven and the other at age 16—
and did not carry out their attacks for years after arriving.12 The idea that it is
rational to ban toddlers from entering the country out of a speculative fear that they
might someday grow up to be terrorists is implausible, and offends our most basic
principles. Cf. Miller v. Alabama, 132 S. Ct. 2455, 2464-65 (2012) (recognizing
that fundamental differences between juveniles and adults that makes it difficult to
predict with confidence how children will behave as they mature). Nor could any
“enhanced screening” plausibly determine which young children will grow up to
be terrorists.
The Order is also arguably under-inclusive—another sign of irrationality
that often bespeaks constitutionally impermissible animus toward those few the
law actually targets. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
11

See Rocha, et al., supra (reporting that 22-year-old perpetrator was born in Iran
but “grew up in the Charlotte area, attending public school for 13 years until he
graduated from South Mecklenburg High School in 2001,” five years before
attack); Colin Miner, et al., F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack,
N.Y. Times (Nov. 27, 2010), available at http://www.nytimes.com/2010/11/28/us/
28portland.html (visited Feb. 15, 2017) (reporting that 19-year-old plotter attended
middle school and high school in Oregon).
12

See FBI Investigates Stabbing That Injured 9 at Minnesota Mall as Possible Act
of Terrorism, supra (reporting that 22-year-old perpetrator “was born in Africa and
had lived in the U.S. for 15 years”); Islamic State Group Claims Ohio State
University Rampage, supra (reporting that 18-year-old perpetrator arrived in the
United States two years before the incident, after living for seven years in a refugee
camp in Pakistan).
21

450 (1985) (rejecting need to regulate population density of group homes for
mentally disabled residents as a justification for a zoning ordinance requiring
special permits for such facilities because other types of facilities presenting
identical concerns were not subject to similar requirements). There have been
twelve persons who have succeeded in carrying out fatal terrorist attacks inside the
United States since the September 11, 2001 attacks; not a single one of these
attacks was committed by anyone from the seven countries identified in the
Executive Order.13 Three of them were of Pakistani heritage.14 Three more were
African Americans who were born here.15 Another was Egyptian.16 Two were of
Chechen ancestry, born in former Soviet republics, and came to the United States

13

See Peter Bergen, et al., In Depth: Terrorism in America After 9/11, Part II:
Who are the Terrorists? available at https://www.newamerica.org/indepth/terrorism-in-america/who-are-terrorists/ (visited Feb. 15, 2017).
14

See San Bernardino Shooting: Who Were the Attackers?, BBC (Dec. 11, 2015),
available at http://www.bbc.com/news/world-us-canada-35004024 (visited Feb.
15, 2017); Jennifer Sullivan, Seattle Jewish Center Shooter Gets Life Sentence,
L.A. TIMES (Jan. 15, 2010), available at http://articles.latimes.com/print/
2010/jan/15/nation/la-na-seattle-jewish-center15-2010jan-15 (visited Feb. 15,
2017).
15

See Sergio Peçanha & K.K. Rebecca Lai, The Origins of Jihadist-Inspired
Attackers in the U.S., N.Y. TIMES (Dec. 8, 2015), available at http://www.nytimes.
com/interactive/2015/11/25/us/us-muslim-extremists-terrorist-attacks.html?_r=0
(visited Feb. 15, 2017) (Ali Muhammad Brown, Alton Nolen and Abulhakim
Mujahid Muhammad).
16

See Los Angeles Airport Shooting Kills 3, CNN (July 5, 2002), available at
http://edition.cnn.com/2002/US/07/04/la.airport.shooting/ (visited Feb. 15, 2017).
22

from Russia as children.17 And one each came from families that originally hailed
from Kuwait, Afghanistan and the Palestinian Territories.18

Indeed, even the

primary example that the Executive Order cites in support of the travel ban—the
September 11 attacks themselves, see Executive Order, § 1—is wholly unrelated to
any of the countries the ban is focused on. The “19 foreign nationals who went on
to murder nearly 3,000 Americans,” id., came to the United States from Saudi
Arabia, Egypt, Lebanon and the United Arab Emirates.19
In sum, even under rational-basis review, the record of terrorist attacks
committed or attempted in the United States since the September 11 attacks offers
no basis for singling out the seven countries identified in the Executive Order for
travel restrictions. Most of the countries from which foreign terrorist attacks
against the United States have originated are not even included on the list; most of
17

See Nina Burleigh, The Brothers Who Became the Boston Marathon Bombers,
NEWSWEEK (Apr. 6, 2015), available at http://www.newsweek.com/brothers-whobecame-boston-marathon-bombers-319822 (visited Feb. 15, 2017).
18

See Orlando Gay Nightclub Shooting: Who Was Omar Mateen?, BBC (June 14,
2016), available at http://www.bbc.com/news/world-us-canada-36513468 (visited
Feb. 15, 2017); Catherine E. Shoichet & Gary Tuchman, Chattanooga Shooting: 4
Marines Killed, A Dead Suspect and Questions of Motive, CNN (July 17, 2015),
available
at
http://edition.cnn.com/2015/07/16/us/tennessee-naval-reserveshooting (visited Feb. 15, 2017); James Dao, Suspect Was ‘Mortified’ About
Deployment, N.Y. TIMES (Nov. 5, 2009), available at http://www.nytimes.com/
2009/11/06/us/06suspect.html (visited Feb. 15, 2017).
19

September 11th Hijackers Fast Facts, CNN (Sept. 5, 2016), available at http://
cnn.com/2013/07/27/us/september-11th-hijackers-fast-facts (visited Feb. 15,
2017).
23

the countries that are on the list are ones from which no terrorist threat has come at
all in the period following the September 11 attacks; and even acknowledging that
a handful of recent attackers or would-be attackers were from these countries,
because they came here as children it seems inconceivable that any purported
“enhanced screening” would have prevented those incidents or more like them.
Based on both its under-inclusiveness and over-inclusiveness, the Executive
Order’s travel ban “appears to rest on an irrational prejudice against” nationals
from the seven countries singled out for adverse treatment, which is not a
legitimate government interest that supplies the requisite rational basis. Cleburne,
473 U.S. at 450.
III.

The President’s Statutory Authority Under Section 212(f) of the INA
Does Not Justify the Executive Order.
Even ignoring the substantial constitutional difficulties with the Executive

Order’s travel ban, Defendants’ principal statutory basis for it—Section 212(f) of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(f)—also fails to
justify it. See Executive Order, § 3(c). To be sure, Section 212(f) is framed in
broad language, authorizing the President 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” when he 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.” 8 U.S.C. § 1182(f). But for the reasons to
24

follow, the phrase “class of aliens” in Section 212(f) should not be interpreted to
include “nationality” as a type of class.
The phrase “class of aliens” in Section 212(f) is not defined, and thus does
not explicitly provide the President authority to define a “class” in terms of
nationality or any similar immutable characteristic. Nor should it be interpreted to
include such authority. Instead, the phrase “class of aliens” in Section 212(f)
should be read in light of the same phrase as used elsewhere in the statute,
specifically Section 212(a). See Dep’t of Revenue of Or. v. ACF Indus., Inc., 510
U.S. 332, 342 (1994) (“[I]dentical words used in different parts of the same act are
intended to have the same meaning.”). Section 212(a) defines several specific
“classes of aliens ineligible for visas or admission,” who are categorically
“ineligible to receive visas and ineligible to be admitted to the United States.” 8
U.S.C. § 1182(a). None of the “classes of aliens” set forth in Section 212(a) are
defined in terms of immutable characteristics, such as nationality; rather, the
categories are typically defined by reference to the alien’s individual conduct, and
in some cases by mutable characteristics (e.g., infection with a communicable
disease).

See, e.g., id. § 1182(a)(1) (health-related grounds), (a)(2) (certain

criminal activities or convictions), (a)(1) (communicable diseases), (a)(3)
(terrorism, membership in totalitarian parties and related activities), (a)(6) & (9)
(prior violations of U.S. immigration laws), (a)(7) (failure to present required

25

documentation). The absence of any “classes” of aliens defined by immutable
characteristics in Section 212(a) provides reason to believe that “any class of
aliens” in 212(f) similarly excludes immutable characteristics such as nationality.
Put another way, the meaning of the phrase “any class of aliens” as used in
Section 212(f) (emphasis added) should be determined in light of the “company it
keeps” under “familiar” statutory-interpretation principles. McDonnell v. United
States, 136 S. Ct. 2355, 2368 (2016) (quoting Jarecki v. G.D. Searle & Co., 367
U.S. 303, 307 (1961)). And here, the “company” that Section 212(f) keeps—the
enumeration of specific “classes of aliens” identified in Section 212(a)—suggests
that it was only meant to provide the President with the authority to temporarily
exclude additional “classes of aliens” defined by their individual conduct or
mutable characteristics, not their immutable characteristics such as nationality. 8
U.S.C. § 1182(f). Nowhere in Section 212 is there any contrary evidence that
would support reading “class” to include an entire nationality.
Consistent with that limited reading of Section 212(f), the Executive Order’s
categorical prohibition on all foreign nationals (other than certain government
officials) from certain countries holding valid U.S. visas entering the United States
is unprecedented in the history of the clause. Notwithstanding numerous wars, hot
and cold, during Section 212(f)’s more than 60-year history, during which Section
212(f) was invoked dozens of times, none of those invocations were to bar all

26

aliens of a given nationality holding visas from entering the United States whether
as immigrants or non-immigrants.20

Instead, suspensions pursuant to Section

212(f) usually were on the basis of only demonstrated conduct by specific aliens
(e.g., committing human rights abuses, supporting terrorism, or participating in
anti-democratic coups). See Kate M. Manuel, Executive Authority to Exclude
Aliens: In Brief (Cong. Res. Serv. Jan. 23, 2017), at 1-2 & 6-10 (Table 1). That
“contemporaneous and consistent” executive practice suggests that “any class of
aliens” means something less than a whole nationality, and that understanding “is
entitled to great weight” in construing the statute. Fleming v. Mohawk Wrecking &
Lumber Co., 331 U.S. 111, 116 (1947); accord Norman Singer & Shambie Singer,
2B Sutherland Statutes and Statutory Construction § 49:3 (7th ed. 2016); cf.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952)
(Frankfurter, J., concurring) (“[A] systemic, unbroken, executive practice, long
pursued to the knowledge of the Congress and never before questioned, engaged in
by Presidents who have also sworn to uphold the Constitution, making as it were
such exercise of power part of the structure of our government, may be treated as a
20

An August 26, 1986 proclamation limited the entry of Cuban immigrants, but
included broad categorical exceptions for Cuban nationals applying for admission
as immediate relatives, “special immigrants”—which includes numerous
categories of immigrants including lawful permanent residents returning from
abroad—and “preference immigrants,” including those with family-sponsored and
employment-based immigrant visas. See Proclamation No. 5517, 51 Fed. Reg.
30,470 (Aug. 22, 1986); 8 U.S.C. §§ 101, 1151, 1153.
27

gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”).
In summary, there is no clear indication that Congress meant to give the
President carte blanche to prevent entire nationalities of aliens from entering the
country. Section 212(f)’s grant of authority should be construed so as not to create
unnecessary tension with the rest of Section 212, and thus construed, the Executive
Order’s travel ban should be invalidated as an action that lies beyond the
President’s authority. Cf. Rust v. Sullivan, 500 U.S. 173, 191 (1991).
CONCLUSION
This Court should decline to reconsider the panel’s February 9, 2017
decision en banc and should also decline to disturb the district court’s February 3,
2017 prohibiting enforcement of the Executive Order, which ultimately should be
affirmed in this appeal.

28

Respectfully submitted,

s/ Kevin P. Martin
Kevin P. Martin
Nicholas K. Mitrokostas
William B. Brady
Joshua M. Daniels
Eileen L. Morrison
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: [phone]
Fax.: [phone]
Counsel for Amici Curiae The Foundation
for the Children of Iran and Iranian
Alliances Across Borders
Dated: February 16, 2017

29

CERTIFICATE OF COMPLIANCE
The undersigned counsel for amici curiae The Foundation for the Children
of Iran and Iranian Alliances Across Borders hereby certifies that this brief is
accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit
Rule 29-2(c)(2) and is 6,622 words, excluding the portions exempted by Fed. R.
App. P. 32(f). The brief’s type size and type face comply with Fed. R. App. P.
32(a)(5) and (6) because the brief has been prepared using Times New Roman, 14point type.

s/ Kevin P. Martin
Kevin P. Martin
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: [phone]
Fax.: [phone]
Dated: February 16, 2017

CERTIFICATE OF SERVICE
I hereby certify that the foregoing Brief of Foundation for the Children of
Iran and Iranian Alliances Across Borders as Amici Curiae Supporting PlaintiffsAppellees and in Opposition to en banc Reconsideration was filed with the Clerk
of the Court for the United States Court of Appeals for the Ninth Circuit via the
appellate CM/ECF system on February 16, 2017. All parties in this case or their
counsel of record who are registered CM/ECF users will be served by operation of
the ECF system; the following unregistered participants were served by U.S. Mail:
James J. O’Hagan
2298 Cranberry Road
Grayland, WA 98547
Kim Blandino
c/o 411 N. 16th Street
Las Vegas, NV 89101
Daniel O. Escamilla
Suite 100
888 W. Santa Ana Blvd.
Santa Ana, CA 92701
s/ Kevin P. Martin
Kevin P. Martin
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: [phone]
Fax.: [phone]
Dated: February 16, 2017