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

Filing 22

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Law Professors and Clinicians. Date of service: 02/05/2017. [10302885] [17-35105]--[COURT UPDATE: Updated docket text to reflect content of filing, resent notice. 02/06/2017 by LA] (Marouf, Fatma) [Entered: 02/05/2017 09:56 PM]

No. 17-35105
___________________________________________
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 AMICI CURIAE
LAW PROFESSORS AND CLINICIANS
SUPPORTING PLAINTIFFS-APPELLEES
______________________________________________

FATMA E. MAROUF
Professor of Law
Director, Immigrant Rights Clinic
Texas A&M University School of Law
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

TABLE OF CONTENTS
STATEMENT OF INTEREST.…...…………………………………………..…...1
INTRODUCTION………………………………………………………………….1
ARGUMENT………………………………………………………………….........2
I.

THE EO INFLICTS IRREPARABLE HARM ON
INTERNATIONAL STUDENTS AND RESEARCHERS…………..2

II.

PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON
THE MERITS………………………………………………………...5
A. The EO Violates Due Process Rights of Nonimmigrants……...6
B. The EO Violates the Immigration and Nationality Act and
Administrative Procedure Act…………………………………9

CONCLUSION…………………………………………………………………...12

i

TABLE OF AUTHORITIES

U.S. Federal Cases
All. for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011)……………………………………………….6
Bustamante v. Mukasey,
531 F.3d 1059 (9th Cir. 2012)……………………………………………….8
Chamber of Commerce v. Reich,
74 F.3d 1322 (D.C. Cir. 1996)……………………………………………..11
Coquico, Inc. v. Rodriguez-Miranda,
562 F.3d 62 (1st Cir. 2009)………………………………………………….6
Felkner v. Jackson,
562 U.S. 594 (2011)…………………………………………………………8
Fiallo v. Bell,
430 U.S. 787, 807 (1977).…………………………………………………...8
Franklin v. MA,
505 U.S. 788 (1992)………………………………………………….…….11
Kesser v. Cambra,
465 F.3d 351 (9th Cir. 2006).……………………………………………….8
Kerry v. Din,
135 S.Ct. 2128 (2015)……………………………………………………….7
Kleindienst v. Mandel,
408 U.S. 753 (1972)……………………………………………………….7-8
Louhghalam v. Trump,
Civ. 17-10154-NMG (Feb. 3, 2017) ………………………………………...6

ii

Public Citizen v. United States Trade Representative,
5 F.3d 549 (D.C. Cir. 1993).……………………….………………………11
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) ………………………………………………6
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008)……………………………………………………………6
Title 8 of United States Code (Immigration and Nationality Act)
8 U.S.C. § 1152(a)(1)(A)……………………………………………………...10-11
8 U.S.C. § 1184(a) ……………………………………………………..………9, 11
8 U.S.C. § 1201(c)(2) …………………………………………………………….10
8 U.S.C. § 1201(h) ……………………………………………………………….10
8 U.S.C. § 1201(i) …………………………………………………………………3
8 U.S.C. § 1227(a)(1)(B) ………………………………………………………….2
8 U.S.C. § 1182(f) ………………………………………………………………..11
Title 5 of U.S. Code (Administrative Procedure Act)
5 U.S.C. § 706(2)(A) ……………………………………………………….…….11
5 U.S.C. § 706(2)(C) …………………………………………………………….11
5 U.S.C. § 706(2)(D) …………………………………………………………….11
Secondary Sources
Association of Public Land-Grand Universities, Public Universities Respond to
New Immigration Executive Order (including statements from 140 public
universities expressing concerns about the ban),

iii

http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html (lasted visited Feb. 5, 2017)……………………………………4
Noah Bierman, Donald Trump’s Muslim ban was removed from the Website, but
it’s back,” LOS ANGELES TIMES, Nov. 10, 2016,
http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html (lasted visited
Feb. 5, 2017)………………………………………………………………………9
College Factual, How Trump’s Executive Order Affects Thousands of International
Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/howtrumps-travel-ban-affects-thousands-of-international-students (lasted visited Feb.
5, 2017)…………………………………………………………………………...4-5
International Higher Education Consulting Blog, Running List of
University/College and Higher Education Organization/Association Responses to
President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist
Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihecdjc.blogspot.com/2017/01/running-list-of-universitycollege-and.html (last visited
Feb. 5, 2017)………………………………………………………………………..4
Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31,
2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissent-memo/
(last visited Feb. 5, 2017)…………………………………………………………10
Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017),
https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences (last visited Feb. 5, 2017)…………5
Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’,
THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally (last visited Feb. 5,
2017)………………………………………………………………………………..9

iv

Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires
Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017,
https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html (last visited Feb. 5, 2017)…………………………………………….10
Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing
Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (last visited
Feb. 5, 2017)………………………………………………………………………..9
U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department
of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001(last visited Feb. 5, 2017)…………………………………….2-3
U.S. Department of State, Bureau of Consular Affairs, Important Announcement,
Executive Order on Visas,
https://travel.state.gov/content/travel/en/news/important-announcement.html (last
visited Feb. 5, 2017)………………………………………………………………..3

v

STATEMENT OF INTEREST
Amici are law professors and clinicians at institutions of higher education.
Amici have personal, professional, and academic connections to students,
researchers, faculty, and staff from all over the world. Many amici teach law
school clinics and have had first-hand experience with international students,
faculty, and clients who have sought their direct assistance with immigration issues
resulting from the President’s recent Executive Order (EO). As law professors and
clinicians, we have worked hard in a climate of chaos and confusion to assist
international students and faculty detained at airports and stranded abroad after
participating in conferences, giving talks, or engaging in research. We have also
helped students and faculty navigate concerns about the impact of the revocation of
their visas on their studies and employment, including the risk of being placed in
removal proceedings. In addition, we have scrambled to assist numerous
noncitizens not affiliated with universities who have similarly been affected by the
EO. Amici submit this brief under Fed. R. App. P. 29, Circuit Rule 29(a)(2). All
parties have consented to the submission of amici briefs in this case.
INTRODUCTION
The Ninth Circuit should deny the motion for an emergency stay of the
temporary restraining order (TRO) issued by the U.S. District Court for the
Western District of Washington. The EO issued on January 27, 2017 creates a
1

serious risk of irreparable harm to our clients, students, and colleagues who have
nonimmigrant (temporary) visas at United States universities. In addition,
Plaintiffs-Appellees are likely to succeed on the merits of their constitutional and
statutory claims.
ARGUMENT
I.

THE EO INFLICTS IRREPARABLE HARM ON
INTERNATIONAL STUDENTS AND RESEARCHERS.
On January 31, 2017, the U.S. Department of Justice released a State

Department notice dated January 27, 2017, “provisionally revok[ing] all valid
nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia,
Sudan, Syria, and Yemen,” subject to narrow exceptions for diplomatic visas and
case-by-case determinations made in the national interest.1 This revocation of visas
made everyone with nonimmigrant visas from the seven countries, even those
within the United States, potentially deportable under 8 U.S.C. § 1227(a)(1)(B),
which provides: “Any alien who is present in the United States in violation of this
Act or any other law of the United States, or whose nonimmigrant visa (or other

U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department
of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001.
1

2

documentation authorizing admission into the United States as a nonimmigrant)
has been revoked under section 221(i) is deportable.” (Emphasis added).2
On or about February 4, 2017, the State Department issued an announcement
confirming that it had, “under the Executive Order, provisionally revoked all valid
visas of nationals of those seven countries, with limited exceptions.”3 (Emphasis
added). In light of the TRO issued by the U.S. District Court for the Western
District of Washington, however, the State Department lifted the provisional
revocation. Id.
The nationwide TRO currently protects thousands of international students
and researchers in the United States. If the order is reversed, students and
researchers will suffer irreparable harm, namely the inability to travel outside the
United States and a fear that they may fall out of legal status and suffer
deportation. They would be unable to leave the country to attend international
symposia or conferences, engage in overseas field research, collaborate with
colleagues in other countries, or visit their families without encountering
impediments to their return.

The State Department invoked its authority under 8 U.S.C. § 1201(i), INA §
221(i), in its letter dated Jan. 27, 2017. See supra note 1.
3 U.S. Department of State, Bureau of Consular Affairs, Important Announcement,
Executive Order on Visas,
https://travel.state.gov/content/travel/en/news/important-announcement.html.
2

3

According to data collected from the Department of Homeland Security by
College Factual, a higher education data analytics and research company, there
were 23,763 students with F-1 and M-1 student visas at 596 universities in the
United States affected by the travel ban.4 Since this number only includes students,
not faculty, it actually underestimates the true number of individuals who are
affected and who may be subjected to deportation if their nonimmigrant visas
expired. Post-docs, medical residents, and faculty often work at United States
universities with other types of nonimmigrant visas, such as J-1 visas for exchange
visitors and H-1 visas for temporary workers.
Students’ and researchers’ concerns are consistent with those expressed by
numerous American universities.5 The students and researchers we work with and
represent provide critical, diverse viewpoints to university life. Their experiences
College Factual, How Trump’s Executive Order Affects Thousands of
International Students in the U.S., Jan. 31, 2017,
http://inside.collegefactual.com/blog/how-trumps-travel-ban-affects-thousands-ofinternational-students.
5 See Appendix A (list of hundreds of institutions of higher education that have
expressed concerns about the EO); Association of Public Land-Grand Universities,
Public Universities Respond to New Immigration Executive Order (including
statements from 140 public universities expressing concerns about the ban),
http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html; International Higher Education Consulting Blog, Running List
of University/College and Higher Education Organization/Association Responses
to President Trump’s Executive Order Entitled “Protecting the Nation from
Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017,
http://ihec-djc.blogspot.com/2017/01/running-list-of-universitycollege-and.html.
4

4

and perspectives enrich our understanding of new problems to be solved, and help
identify original solutions to those problems.
Shortly after the EO was announced, over 3,000 international scholars
signed a petition to “boycott international academic conferences held in the United
States in solidarity with those affected by” the EO. 6 Not only does this suppress
intellectual activity and collaboration, but it also inflicts substantial financial harm.
Furthermore, if international students from the seven banned countries are no
longer able to attend school in the U.S., either because they are denied entry to the
country or their visas expire, our universities stand to lose hundreds of millions of
dollars.7 These financial losses, which would affect our programs, including our
law school clinics, could be even greater if the ban also discourages students who
are citizens of other Muslim-majority countries from studying in the United States.
II.

PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON
THE MERITS

Unlike the First Circuit, the Ninth Circuit has never placed special emphasis
on the “likelihood of success” factor, resulting in a different legal standard here
than was applied in the Massachusetts case. See Exh. B to Emergency Motion for
Stay (Louhghalam v. Trump, Civ. 17-10154-NMG, Order at 20 (Feb. 3, 2017))
Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017),
https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences.
7 See College Factual, supra note 4 (estimating that revocation of student visas at
596 schools would result in losses of $700 million).
6

5

(citing Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009)
(holding that the likelihood of success factor weighs most heavily in the decision).
Here, the District Court judge correctly relied on Ninth Circuit precedents that
consider all four factors using a sliding scale. See All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011); Stormans, Inc. v. Selecky, 586
F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 24 (2008)).
A. The EO Violates Due Process Rights of Nonimmigrants
Nonimmigrants who have been granted visas and are already living in the
United States have due process rights to stay here; those who are abroad have a due
process interest in proper adjudication of their rights to be in the United States.
U.S. Const. amend. V. The EO affects not only nonimmigrants who are seeking
entry for the first time, but also those who have established ties to the United
States, including students and faculty who we have assisted in the past weeks as
they grapple with the EO's impact. The EO inflicted irreparable harm on
nonimmigrants within the United States who suddenly lost their ability to travel,
had their visas revoked, and thereby feared deportation. Many of these students
and faculty members have already been in the United States for years, are in the
middle of degree programs, and have made significant intellectual contributions to
the United States. They should receive due process protections commensurate with

6

their substantial ties to the United States. This Court need not determine the precise
contours of the process due to nonimmigrants living in the United States (or those
abroad) in deciding this appeal. It need only find a likelihood of success in
showing that the process received by these nonimmigrants – which involved no
notice, no opportunity to respond, and no individualized analysis of risk to national
security – was insufficient.
Even if the Court applies the “facially legitimate and bona fide” standard
that has been applied to individuals seeking admission, the EO fails to satisfy that
test. While national security may, in some cases, be a facially legitimate reason, it
is not legitimate when applied without any individualized analysis to entire
nations. Cf. Kleindienst v. Mandel, 408 U.S. 753, 769 (1982) (finding a “facially
legitimate and bona fide” reason for the denial of visa to an individual who had
violated the conditions of his visa on two prior trips); Kerry v. Din, 135 S.Ct. 2128,
2140 (2015) (finding a “facially legitimate and bone fide” reason for the denial of a
visa to an Afghan national who had previously been employed by the Taliban).
Neither the Supreme Court nor the Ninth Circuit has ever held that national origin,
religion, or race alone constitutes a “facially legitimate and bona fide reason.” The
overbreadth of the EO reflects the type of “unfettered discretion” that the Supreme
Court has explicitly rejected. See Kleindienst, 408 U.S. at 762; Fiallo v. Bell, 430
U.S. 787, 807 (1977).

7

Furthermore, even if national security provides a facially legitimate reason
for the EO, it is not a bona fide reason for the ban on all individuals from seven
Muslim-majority countries. As previously recognized by this Court, the “facially
legitimate” and “bona fide” prongs of the test are distinct. See Bustamante v.
Mukasey, 531 F.3d 1059, 1062-1063 (9th Cir. 2012) (examining the “bona fide”
prong separately). The “bona fide” part of the test requires a court to distinguish
between good faith reasons and pretextual excuses. In other contexts, appellate
courts have given great deference to trial courts’ determinations of whether the
government’s explanation is bona fide. See Kesser v. Cambra, 465 F.3d 351, 356
(9th Cir. 2006) (noting that the court of appeal gave “great deference to the trial
court in distinguishing bona fide reasons from sham excuses”); Felkner v. Jackson,
562 U.S. 594, 596 (2011) (same).
Here, there is substantial evidence that the ban was motivated by animus
against Muslims. For example, on January 28, 2017, a week after the inauguration,
Former New York City Mayor Rudy Giuliani stated in an interview that President
Trump had previously asked him about legally implementing a “Muslim ban.” 8
Indeed, for nearly a year preceding the election, President Trump’s campaign

8Rebecca

Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’,
THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally.
8

website referred to a “Muslim ban,” indicating discriminatory intent.9 The evidence
that there was no bona fide reason for the ban will be developed further through
discovery. In the interim, however, the TRO should remain in place to prevent
irreparable harm to nonimmigrants.
B. The EO Violates the Immigration and Nationality Act and the
Administrative Procedure Act
The INA provides the procedure due to arriving nonimmigrants with valid
nonimmigrant visas. The EO violates those procedures in three ways. First, the
statute requires that the procedure for admission be set through regulation. 8
U.S.C. § 1184(a) (“The admission to the United States of any alien as a
nonimmigrant shall be for such time and under such conditions as the Attorney
General may by regulations prescribe[.]”). The EO was not promulgated as a
regulation. It never went through the public notice and comment procedures that
help ensure transparent, deliberate, well-reasoned policies under § 553 of the
Administrative Procedure Act (APA). In fact, the EO was never even vetted by key
agency officials or career diplomats with relevant expertise, hundreds of whom

Bierman, Donald Trump’s Muslim ban was removed from the Website, but
it’s back,” LOS ANGELES TIMES, Nov. 10, 2016,
http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html; see also Press
Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing
Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration.
9Noah

9

have since explicitly voiced their opposition to the EO, including the former
Acting Attorney General, Sally Yates, who refused to defend the ban.10 The failure
to use a transparent process also contributed to the chaos and confusion that ensued
after the EO was suddenly issued.
Second, the statute requires that a nonimmigrant visa “shall be valid for the
period the regulations proscribe.” Id. § 1201(c)(2). However, the EO effectively
invalidated the visas for travel purposes. Third, the INA denies admission to
nonimmigrants only when they are inadmissible under the INA or “any other
provision of law.” 8 U.S.C. § 1201(h). The EO denies admission to all visa holders
from the seven countries regardless of admissibility.
In addition, with respect to immigrant visas, the INA prohibits
discrimination in admissions based on nationality. 8 U.S.C. § 1152(a)(1)(A).
Congress enacted the nondiscriminatory provision after 8 U.S.C. § 1182(f), which
authorizes 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.” The provision allowing suspension of entry of

See Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN,
Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissentmemo/; Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump
Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017,
https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html.
10

10

classes of aliens is therefore subject to the nondiscrimination requirement in 8
U.S.C. § 1152(a)(1)(A). Furthermore, the President’s authority under 8 U.S.C. §
1182(f) should not be interpreted to undermine the requirement that the procedures
for nonimmigrant admission be set through regulation. 8 U.S.C. § 1184(a).
By violating the plain language of the INA, the EO is also arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law, in
violation of APA § 706(2)(A); in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right, in violation of APA § 706(2)(C); and
without observance of procedure required by law, in violation of § 706(2)(D).
Although the President is not an “agency” under the APA, Franklin v. MA,
505 U.S. 788, 797 (1992), an agency’s implementation of presidential directives
must still conform to the APA. See, e.g., Chamber of Commerce v. Reich, 74 F.3d
1322, 1327 (D.C. Cir. 1996) (“that the Secretary’s regulations are based on the
President’s Executive Order hardly seems to insulate them from judicial review
under the APA, even if the validity of the Order were thereby drawn into
question.); Public Citizen v. United States Trade Representative, 5 F.3d 549, 552
(D.C. Cir. 1993) (noting that the denial of judicial review over presidential actions
“is limited to those cases in which the President has constitutional or statutory
responsibility for the final step necessary for the agency action directly to affect the
parties). Where, as here, immigration decisions require action by administrative

11

officials, courts routinely apply the APA and administrative law doctrines.
CONCLUSION
In order to protect the constitutional and statutory rights of nonimmigrants
and prevent irreparable harm to our colleagues and clients -- students and faculty
with nonimmigrant visas -- the Court should deny the motion to stay or vacate the
TRO issued by the U.S. District Court for the Western District of Washington. The
TRO should remain in place as parties conduct discovery and the trial court holds
an evidentiary hearing.
DATED: February 5, 2017

Respectfully submitted,
By: /s Fatma Marouf
Fatma E. Marouf, Esq.
Professor of Law
Director of the Immigrant Rights Clinic
Texas A&M University School of Law
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

*All affiliations listed for identification purposes only.
Nancy Abramowitz, American University Washington College of Law
Kathryn Abrams, Berkeley Law
John Acevedo, University of La Verne College of Law
Cynthia Adams, Indiana University McKinney School of Law

12

Deborah Ahrens, Seattle University School of Law
Raquel Aldana, McGeorge School of Law
Arléne Amarante, University of Nevada, Las Vegas School of Law
Farrin Anello, Seton Hall University School of Law
Deborah Anker, Harvard Immigration and Refugee Clinical Program,
Harvard Law School
Susan Appleton, Washington University School of Law
Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program
Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University
Sahar Aziz, Texas A&M University School of Law
Sabrina Balgamwalla, University of North Dakota School of Law
David Baluarte, Washington and Lee University School of Law
Caitlin Barry, Villanova University Charles Widger School of Law
Marsha Baum, University of New Mexico School of Law
Jennifer Baum, St. Vincent de Paul Legal Program, St. John's University School of
Law, Child Advocacy Clinic
Galya Ben-Arieh Ruffer, Northwestern University, Center for Forced Migration
Studies
Emily Benfer, Loyola University Chicago School of Law
Susan Bennett, American University Washington College of Law

13

Lenni Benson, New York Law School
Jacqueline Bhabha, Harvard University
W. Warren H. Binford, Willamette University College of Law
Kaci Bishop, The University of North Carolina School of Law
Blaine Bookey, UC Hastings Center for Gender & Refugee Studies
Cynthia Bowman, Cornell Law School
Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law
Susan Brooks, Drexel University Kline School of Law
Melissa Brown, Pacific McGeorge School of Law
Margaret Burnham, Northeastern University School of Law
Charles Calleros, Arizona State University College of Law
Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law
Nancy Cantalupo, Barry University School of Law
Lauren Carasik, Western New England University School of Law
Elizabeth Carroll, USC Gould School of Law
Benjamin Casper Sanchez, University of Minnesota Law School, Center for New
Americans
Linus Chan, University of Minnesota Law School
Kim D. Chanbonpin, The John Marshall Law School
Marguerite Chapman, University of Tulsa College of Law (Professor Emerita)

14

Matthew Charity, Western New England University School of Law
Carol Chomsky, University of Minnesota Law School
Eric Christiansen, Golden Gate University School of Law
Janie Chuang, American University Washington College of Law
Beth Cohen, Western New England University School of Law
Donna Coker, University of Miami School of Law
Ruth Colker, Ohio State University Moritz College of Law
Holly Cooper, UC Davis School of Law Immigration Law Clinic
Avidan Cover, Case Western Reserve University School of Law
Rachel Croskery-Roberts, University of California - Irvine School of Law
Rose Cuison-Villazor, UC Davis School of Law
Alina Das, New York University School of Law Immigrant Rights Clinic
Julie Davies, University of the Pacific, McGeorge School of Law
Angela Davis, American University Washington College of Law
Amy Dillard, University of Baltimore School of Law
Victoria Dodd, Suffolk University Law School
Jennifer Drobac, Indiana University Robert H. McKinney School of Law
Moira Duvernay, UC Hastings Center for Gender & Refugee Studies
Maurice Dyson, Thomas Jefferson School of Law
Pamela Edwards, CUNY School of Law

15

Nancy Ehrenreich, University of Denver Sturm College of Law
Floralynn Einesman, California Western School of Law
Kathleen Engel-Rebitzer, Suffolk University Law School
Kate Evans, University of Idaho College of Law
Jessica Feinberg, Mercer Law School
Zanita Fenton, University Miami School of Law
Paul Finkelman, University of Pittsburgh School of Law
Angelina Fisher, NYU School of Law
Barbara Flagg, Washington University Law
Laurel Fletcher, Berkeley Law
Taylor Flynn, Western New England School of Law
Caroline Forell, University of Oregon Law
Jacqueline Fox, University of South Carolina School of Law
Eric Franklin, William S.Boyd School of Law, UNLV
Ann Freedman, Rutgers Law School
Niels Frenzen, University of Southern California Gould School of Law
Maryellen Fullerton, Brooklyn Law School
Paula Galowitz, New York University School of Law
Susan Gary, University of Oregon School of Law
Lauren Gilbert, St. Thomas University School of Law

16

Jason Gillmer, Gonzaga School of Law
Denise Gilman, University of Texas School of Law Immigration Clinic
Barbara Glesner Fines, University of Missouri Kansas City School of Law
Phyllis Goldfarb, George Washington University Law School
Ezra Goldschlager, University of La Verne College of Law
Naomi Goodno, Pepperdine University School of Law
Joanne Gottesman, Rutgers Law School
Tiffany Graham, University of South Dakota School of Law
Ariela Gross, University of Southern California, Gould School of Law
Aya Gruber, University of Colorado Law School
Anju Gupta, Rutgers Law School Immigrant Rights Clinic
Egon Guttman, American University, Washington College of Law
Gillian Hadfield, University of Southern California, Gould School of Law
Rebecca Hamilton, American University, Washington College of Law
Gail Hammer, Gonzaga University School of Law, University Legal Assistance
Anna Han, Santa Clara Law School
Jean Han, American University, Washington College of Law
Jacqueline Hand, University of Detroit Mercy Law School
Lindsay Harris, University of D.C. - David A. Clarke School of Law
Keith M. Harrison, Savannah Law School

17

Danielle Hart, Southwestern Law School
Bruce Hay, Harvard Law School
Dina Haynes, New England Law|Boston
Geoffrey Heeren, Valparaiso University Law School
Jennifer Hendricks, University of Colorado
Laura A. Hernandez, Baylor Law School
Kathy Hessler, Lewis & Clark Law School
Richard Hildreth, University of Oregon Law
Bill Hing, Univ. of San Francisco Immigration and Deportation Defense Clinic
Cynthia Ho, Loyola University of Chicago School of Law
Sharona Hoffman, Case Western Reserve University School of Law
Brooks Holland, Gonzaga University School of Law
Mary Holper, Boston College Immigration Clinic
Kari Hong, Boston College Law School, Ninth Circuit Appellate Program
C. Quince Hopkins, Florida Coastal School of Law
Emily Houh, University of Cincinnati College of Law
Alan Hyde, Rutgers Law School
Lisa Ikemoto, University of California, Davis School of Law
Erin Jacobsen, Vermont Law School
Sam Jacobson, Willamette University College of Law

18

Regina Jefferies, University of Minnesota Law School
Jamila Jefferson-Jones, University of Missouri - Kansas City
Dalie Jimenez, University of Connecticut School of Law
Paula Johnson, Syracuse University College of Law
José (Beto) Juárez, University of Denver Sturm College of Law
Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law
Mary Kate Kearney, Widener Commonwealth Law School
Christine Kellett, Dickinson Law/Penn State
Kathryn Kelly, The Catholic University of America
Laura Kessler, University of Utah, S.J. Quinney College of Law
Elizabeth Keyes, University of Baltimore School of Law
Kathleen Kim, Loyola Law School
Catherine Kim, University of North Carolina School of Law
Andrew Kim, Syracuse University College of Law
Diane Klein, University of La Verne College of Law
Eunice Lee, UC Hastings Center for Gender & Refugee Studies
Jennifer Lee Koh, Western State College of Law
Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis)
Annie Lai, UC Irvine School of Law
Prerna Lal, East Bay Community Law Center, Berkeley Law

19

Laurie Leader Chicago-Kent College of Law, IIT
Terri LeClercq, School of Law, Univeristy of Texas
Evelyn Lewis, UCD Law
Joellen Lind, Valparaiso University Law School
Jeffrey Lubbers, American University, Washington College of Law
Beth Lyon, Cornell Law School
Elizabeth MacDowell, William S.Boyd School of Law, UNLV
Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin
N. Cardozo School of Law
Randi Mandelbaum, Rutgers Law School
Susan Mandiberg, Lewis & Clark Law School
Genevieve Mann, Gonzaga University School of Law
Lynn Marcus, Immigration Law Clinic, University of Arizona James E. Rogers
College of Law
Jennifer Martin, St. Thomas University School of Law
Elena Marty-Nelson, NSU College of Law
Julie Marzouk, Chapman University, Fowler School of Law
Dayna Matthew, University of Colorado School of Law
Elizabeth McCormick, University of Tulsa College of Law
Kris McDaniek-Miccio, University of Denver Sturm College of Law

20

Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative
Amelia McGowan, Catholic Charities of Jackson, Mississippi
Brian McGowan, Grambling State University
Karla McKanders, University of Tennessee, College of Law
Fiona McKenna, Golden Gate University School of Law
Michelle McKinley, University of Oregon School of Law
Mary Brigid McManamon, Delaware Law School
Judith McMorrow, Boston College Law School
Stephen Meili, University of Minnesota Law School
Chi Mgbako, Fordham University School of Law
Binny Miller, American University, Washington College of Law
Elliott Milstein, American University Washington College of Law
Sherizaan Minwalla, American University, Washington College of Law
Behzad Mirhashem, UNH School of Law
Jennifer Moore, University of New Mexico School of Law
Nancy Morawetz, NYU School of Law
Kathleen Morris, Golden Gate Law School
Mary-Beth Moylan, University of the Pacific, McGeorge School of Law
Professor Ann Murphy, Gonzaga University School of Law
Yxta Maya, Murray Loyola Law School

21

Karen Musalo, UC Hastings Center for Gender & Refugee Studies
Natalie Nanasi, SMU Dedman School of Law
Jason Neidleman, University of La Verne
Nise Nekheba, Florida A&M University College Of Law
Lori Nessel, Seton Hall University School of Law
Xuan-Thao Nguyen, Indiana University McKinney School of Law
Fionnuala Ni Aolain, University of Minnesota, Human Rights Center
Blake Nordahl, McGeorge Law School Immigration Law Clinic
Tracy Norton, Touro College Jacob F. Fuchsberg School of Law
Kenneth Nunn, University of Florida College of Law
Udoka Nwanna Southwestern Law School
Mariela Olivares, Howard University School of Law
Michael A. Olivas, University of Houston Law Center
Laura Oren, University of Houston Law Center
Maria Pabon, Loyola New Orleans College of Law
Victoria Palacios, SMU Dedman Law School
Sunita Patel, American University Washington College of Law
Carole Petersen, William S. Richardson School of Law
Huyen Pham, Texas A&M University School of Law
Teresa Phelps, American University Washington College of Law

22

Karen Pita Loor, Boston University Law School
Nancy Polikoff, American University Washington College of Law
Andrew Pollis, Case Western Reserve University School of Law
Deborah Post, Touro Law Center
Ana Pottratz Acosta, Mitchell Hamline School of Law
Cynthia Prado-Guyer, University of Southern California
Lynne Rambo Texas A&M University School of Law
Jaya Ramji-Nogales, Temple University Beasley School of Law
Andrea Ramos Southwestern Law School Immigration Law Clinic
Vernellia Randall, The University of Dayton School of Law
Renee Redman, University of Connecticut School of LAw
Nikki Reisch, NYU School of Law
Paula R. Rhodes, University of Denver Sturm College of Law
Ira Robbins, American University Washington College of Law
Kalyani Robbins, FIU College of Law
Jenny Roberts, American University, Washington College of Law
Cassandra Burke Robertson, Case Western Reserve Univ. School of Law
Eloisa Rodriguez-Dod, FIU College of Law
Sarah Rogerson, Albany Law School
Michael Rooke-Ley, Nova Southeastern University College of Law

23

Leslie Rose, Golden Gate University School of Law
Rand Rosenblatt, Rutgers University Law School
Florence Rousman, Indiana U. Robert H. McKinney School of Law
Judith Royster, University of Tulsa College of Law
Rubén G. Rumbaut, University of California, Irvine
Kevin Ruser, University of Nebraska College of Law
Margaret Russell, Santa Clara University
C. Mario Russell, Catholic Charities NY, St. John's Law School
Emily Ryo, USC Gould School of Law
Jendayi Saada, Unversity of La Verne College of Law
Laura Sager, New York University School of Law
Richard Sander, UCLA School of Law
Margaret Satterthwaite, NYU School of Law
Irene Scharf, Univ of Massachusetts School of Law
Erica Schommer, St. Mary's University School of Law
Sean Scott, Loyola Law School
Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley
Rachel Settlage, Wayne State Law School
Sudha Setty, Western New England University School of Law
Ragini Shah, Suffolk University

24

Rebecca Sharpless, University of Miami School of Law
Anette Sikka, University of Illinois Springfield
Marjorie Silver, Touro Law Center
Anita Sinha, American University Washington College of Law
Matiangai Sirleaf, University of Pittsburgh Law School
Gwynne Skinner, Willamette University College of Law
Catherine Smith, University of Denver Sturm College of Law
William Snape, American University, Washington college of law
Gemma Solimene, Fordham University School of Law
Mary Spector, SMU Dedman School of Law
Jane Spinak, Columbia Law School
Elissa Steglich, University of Texas School of Law, Immigration Clinic
Nomi Stolzenberg, University of Southern California Law School
Christopher Strawn, Immigration Law Clinic, Univ. of Washington School of Law
Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic
S.I., Strong University of Missouri
Ellen Suni, UMKC School of Law
Maureen Sweeney, University of Maryland Carey School of Law
Chantal Thomas, Cornell University Law School
Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School

25

Michael Tigar, Washington College of Law
Karen Tokarz, Washington University Civil Rights & Community Justice Clinic
Mary Pat Treuthart, Gonzaga University School of Law
Enid Trucios-Haynes, Brandeis School of Law, University of Louisville
Tracy Turner, Southwestern Law School
Diane Uchimiya, Justice and Immigration Clinic, Univ. of La Verne College of
Law
Gloria Valencia-Weber, University of New Mexico School of Law
Rachel Van Cleave, Golden Gate University School of Law
Anthony Varona, American University Washington College of Law
Lea B. Vaughn, University of Washington School of Law
Kyle Velte, Texas Tech University School of Law
Leti Volpp, Berkeley Law
Julie Waterstone, Southwestern Law School
Susan C. Wawrose, University of Dayton School of Law
Jonathan Weinberg, Wayne State University
Marley Weiss, University of Maryland Carey School of Law
Marley Weiss, University of Maryland Carey School of Law
Deborah Weissman, University of North Carolina
Anna Welch, University of Maine School of Law

26

Verna Williams, University of Cincinnati College of Law
Wendy Williams, Georgetown Law
Abby Wood, University of Southern California Gould School of Law
Barbara Woodhouse, Emory Law School
Karen Woody, Indiana University, Kelley School of Business
Marcia Zug, University of South Carolina

27

CERTIFICATION OF COMPLIANCE
This brief complies with the typeface and type style requirements of Fed. R.
App. P. 32(a)(5)(a) and (a)(6) because it has been prepared in a proportionally
spaced typeface, using Microsoft Word in Times New Roman 14-point font.
This brief complies with the type-volume limitations of Fed. R. App. P.
29(d) because it contains 2,577 words excluding the parts exempted by Fed. R.
App. P. 32(a)(7)(B)(iii). (The maximum number of words is 2,600 for an amicus
brief in connection with a motion, which has a word limit of 5,200 words under
Fed. R. App. P. 27(d)(2)(A)).
Dated: February 5, 2017

/s/ Fatma E. Marouf
_____________________
Fatma E. Marouf
Professor of Law
Director of the Immigrant Rights Clinic
Texas A&M University School of Law
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that on February 5, 2017, I electronically filed the foregoing
with the Clerk of the court for the United States Court of Appeals for the Ninth
Circuit using the appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
DATED: February 5, 2017

Respectfully submitted,
/s/ Fatma E. Marouf
_____________________
Fatma E. Marouf
Professor of Law
Director of the Immigrant Rights Clinic
Texas A&M University School of Law
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]