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

Filing 91

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by American Immigration Council, National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Human Rights First, KIND (Kids in Need of Defense), and Tahirih Justice Center. Date of service: 02/06/2017. [10304762] [17-35105]--[COURT UPDATE: Attached exhibits (originally submitted in entry [92]), resent notice. 02/07/2017 by LA] (Mincer, Jonathan) [Entered: 02/06/2017 11:59 PM]

Docket No. 17-35105
IN THE

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.,
________________

Defendants-Appellants.

On Appeal from the United States District Court for the Western District of Washington
Civil Action No. 2:17-cv-00141-JLR
The Honorable James L. Robart
_________________________________________________

BRIEF OF THE AMERICAN IMMIGRATION COUNCIL, NATIONAL
IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,
NORTHWEST IMMIGRANT RIGHTS PROJECT, HUMAN RIGHTS
FIRST, KIND (KIDS IN NEED OF DEFENSE), AND TAHIRIH
JUSTICE CENTER AS AMICI CURIAE IN SUPPORT OF
APPELLEES
________________________________________________

HARRISON (BUZZ) FRAHN
CA BAR NO. 206822
JONATHAN MINCER
CA BAR NO. 298795
SIMPSON THACHER & BARTLETT LLP
2475 Hanover Street
Palo Alto, California 94304
[phone]

Counsel of Record

CORPORATE DISCLOSURE STATEMENT
I, Harrison Frahn, attorney for Amici Curiae, certify that amici are not-forprofit organizations. No amicus has a parent corporation; nor issues stock; nor
does there exist a publicly held corporation that owns 10% or more of the stock of
any amicus.
/s/ Harrison (Buzz) Frahn
Harrison (Buzz) Frahn
SIMPSON THACHER & BARTLETT LLP
2475 Hanover Street
Palo Alto, California 94304
[phone]
[phone] (fax)
Counsel for Amici Curiae

i

TABLE OF CONTENTS
Page
SUMMARY OF ARGUMENT ................................................................................. 4 
ARGUMENT ............................................................................................................. 5 
I. 

APPELLANTS CANNOT APPEAL THE TEMPORARY
RESTRAINING ORDER ...................................................................... 5 

II. 

THE JUDICIARY MUST ACT AS A CHECK ON
PRESIDENTIAL ACTIONS. ............................................................... 9 

III. 

THE EXECUTIVE ORDER CAUSES IRREPARABLE HARM
TO NUMEROUS INDIVIDUALS AND ORGANIZATIONS. ........ 11 

CONCLUSION ........................................................................................................ 15 

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TABLE OF AUTHORITIES
Page(s)
CASES 
Adams v. Vance,
570 F.2d 950 (D.C. Cir. 1978) ..............................................................................6
Alsea Valley All. v. Dep’t of Commerce,
358 F.3d 1181 (9th Cir. 2004) ..............................................................................9
Bolling v. Sharpe,
347 U.S. 497 (1954) ............................................................................................12
Detroit Free Press v. Ashcroft,
303 F.3d 681 (6th Cir. 2002) ..............................................................................10
Envtl. Def. Fund, Inc. v. Andrus,
625 F.2d 861 (9th Cir. 1980) ................................................................................6
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ..................................................................................................9
Marbury v. Madison,
5 U.S. 137 (1803) ..................................................................................................5
Meyer v. Nebraska,
262 U.S. 390 (1923) ............................................................................................12
Moore v. City of E. Cleveland,
431 U.S. 494 (1977) ............................................................................................11
Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local
1199 v. Blackwell,
467 F.3d 999 (6th Cir. 2006) ................................................................................6
Negrete v. Allianz Life Ins. Co. of N. Am.,
523 F.3d 1091 (9th Cir. 2008) ..............................................................................8
Orange Cty. v. Hongkong & Shanghai Banking Corp.,
52 F.3d 821 (9th Cir. 1995) ..............................................................................5, 6
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1928) ............................................................................................12
Religious Tech. Ctr. v. Scott,
F.2d 1306 (9th Cir. 1989) .....................................................................................7

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Thompson v. Enomoto,
815 F.2d 1323 (9th Cir. 1987) .............................................................................. 8
Valdivia v. Schwarzenegger,
599 F.3d 984, 988 (9th Cir. 2010) ........................................................................8

STATUTES 
28 U.S.C.A. § 1291 ....................................................................................................6

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CONSENT TO FILE AS AMICI CURIAE
All parties consent to the filing of this brief.

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INTEREST OF AMICI CURIAE
The American Immigration Council is a national non-profit
organization established to increase public understanding of immigration law and
policy, advocate for the just and fair administration of our immigration laws,
protect the legal rights of noncitizens, and educate the public about the enduring
contributions of America’s immigrants.
The National Immigration Project of the National Lawyers Guild is a
non-profit membership organization of immigration attorneys, legal workers,
grassroots advocates, and others working to defend immigrant rights.
The Northwest Immigrant Rights Project (“NWIRP”) is a Washington
State nonprofit organization that promotes justice by defending and advancing the
rights of immigrants through direct legal services, systemic advocacy, and
community education. NWIRP strives for justice and equity for all persons,
regardless of where they were born.
Human Rights First (formerly known as the Lawyers Committee for
Human Rights) has worked since 1978 to promote fundamental human rights and
to ensure protection of refugees’ rights, including the right to seek and enjoy
asylum. Human Rights First grounds its refugee protection work in the standards
set forth in the 1951 Convention Relating to the Status of Refugees (the “Refugee
Convention”), the 1967 Protocol Relating to the Status of Refugees (the “1967

2

Protocol”), the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment and other international human rights
instruments, and advocates adherence to these standards in the policies, practices
and laws of the United States government. Human Rights First also operates one
of the largest pro bono asylum representation programs in the country, providing
legal representation without charge to hundreds of indigent asylum applicants each
year. Human Rights First is committed to ensuring that all protections granted
under the 1951 Refugee Convention and the 1967 Protocol remain available to
refugees and asylum seekers in the United States.
KIND (Kids in Need of Defense) (“KIND”) is the leading
organization committed to ensuring high-quality legal representation for immigrant
children appearing in immigration court.
Tahirih Justice Center is a national non-profit that has served
courageous individuals fleeing violence since 1997. Through direct services,
policy advocacy, and training and education, Tahirih protects immigrant women
and girls and promotes a world where women and girls enjoy equality and live in
safety and dignity. Tahirih serves immigrant women and girls who have rejected
violence, but face incredible obstacles to justice, including language barriers, lack
of resources, and a complex immigration system. Some are U.S. citizens or have
another type of resident status. Some do not.

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All six organizations have a direct interest in the outcome of this
case.1
SUMMARY OF ARGUMENT
As an initial matter, our nation’s laws make clear that this appeal
should not be heard at all. Temporary restraining orders are generally nonappealable, and Appellants have provided no credible argument otherwise. But if
the Court does consider this appeal, it clearly should not reverse the district court’s
temporary restraining order (“TRO”).
As President George Washington wrote to a religious minority
community containing many immigrants in 1790, “the government of the United
States . . . gives to bigotry no sanction, to persecution no assistance.”2 From as
early as the arrival of the Pilgrims, this land has been a haven for immigrants,
regardless of their faith and country of birth. Freedom of religion and from the
establishment of religion are, of course, enshrined in our First Amendment.

1

All parties have consented to the filing of this brief. Amici state that no
party’s counsel authored this brief in whole or in part, that no party or
party’s counsel contributed money that was intended to fund preparing or
submitting the brief, and that no person other than amici or their counsel
contributed money that was intended to fund preparing or submitting the
brief. See Fed. R. App. P. 29(a)(4)(E).

2

From George Washington to the Hebrew Congregation in Newport, Rhode
Island, 18 August 1790, NATIONAL ARCHIVES,
https://founders.archives.gov/documents/Washington/05-06-02-0135.

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The Executive Order hews away at these foundations of our nation. If
this Court reverses the TRO, scores of refugees, students, professors, skilled
workers, and many others who already have been approved to enter, or re-enter,
the United States will be blocked from doing so solely based on their religion or
national origin. For U.S. citizens and legal permanent residents (“LPR”) who
petitioned for immigrant visas for their family members and for the family
members themselves, reversal of the TRO would cause them to lose their
fundamental, constitutional right to live together as a family.
As organizations committed to serving and advocating on behalf of
the nation’s immigrant populations, amici urge this Court to recognize the
incalculable and irreparable harms that immigrant families will face under the
Executive Order, by refusing to lift the District Court’s TRO.
Appellants argue that the President has the unfettered right to suspend
the entry of aliens, even if based on their religion or national origin. But we live in
a nation “of laws and not men.” Marbury v. Madison, 5 U.S. 137, 163 (1803).
And the Constitution and Immigration and Nationality Act (“INA”) make clear that
such distinctions are forbidden.
ARGUMENT
I.

APPELLANTS CANNOT APPEAL THE TEMPORARY
RESTRAINING ORDER
This Court lacks jurisdiction to hear this appeal because “courts of
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appeals may review only final decisions of district courts.” Orange Cty. v.
Hongkong & Shanghai Banking Corp., 52 F.3d 821, 823 (9th Cir. 1995) (internal
quotation omitted); 28 U.S.C. § 1291. The general rule is that the grant of a TRO
is not subject to interlocutory review. “The rationale for this rule is that TROs are
of short duration and usually terminate with a prompt ruling on a preliminary
injunction, from which the losing party has an immediate right of appeal.” Ne.
Ohio Coal. for Homeless & Serv. Emps. Int'l Union, Local 1199 v. Blackwell, 467
F.3d 999, 1005 (6th Cir. 2006). There are three general exceptions to this rule.
One exception is if the case touches on extraordinary considerations or the
infliction of irreparable consequences. Id. at 1005–06 (6th Cir. 2006); Adams v.
Vance, 570 F.2d 950, 955–56 (D.C. Cir. 1978). The second exception is where
“the denial of the temporary restraining order is tantamount to the denial of a
preliminary injunction.” Envtl. Def. Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th
Cir. 1980). Finally, courts have allowed interlocutory appeals of temporary
restraining orders if the stays “do not preserve the status quo but rather act as a
mandatory injunction requiring affirmative action.” Ne. Ohio Coal., 467 F.3d at
1006 (6th Cir. 2006). None of these exceptions apply here.
First, the TRO in this case acts to preserve the status quo, and there is
no factual evidence of irreparable harm before it expires and the preliminary
injunction can be considered. See, e.g., Ne. Ohio Coal., 467 F.3d 999, 1006 (6th

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Cir. 2006). Appellants cite to no incidents of national security violations from
individuals subject to the Executive Order that justify a reversal of the status quo
for purposes of the appeal of the TRO grant.
Second, the granting of the TRO in this case is not tantamount to the
denial of a preliminary injunction. The practical length of the TRO is sufficiently
short and no decision on the merits was made by the District Court’s order. Cf.
Religious Tech. Ctr. v. Scott, 869, F.2d 1306, 1309 (9th Cir. 1989) (finding that a
TRO denial was tantamount to denial of a preliminary injunction where “[t]he
futility of any further hearing was [] patent” because the decision was based on the
merits).
Finally, the TRO in this case does not act as a mandatory injunction.
The TRO simply halts the Executive Order from applying while the District Court
considers the legal arguments and the evidence the State Plaintiffs will present at
the preliminary injunction stage.
Appellants are unable to show they will suffer “serious, perhaps
irreparable consequences.” Ne. Ohio Coal., 467 F.3d at 1005. In fact, Appellants
have failed to demonstrate any harm by allowing those affected to enter the
country. In the last 30 years, no individual from the seven affected countries has
killed an American in a terrorist attack in the United States. See Alex Nowrasteh,
Guide to Trump’s Executive Order to Limit Migration for “National Security”

7

Reasons, CATO INSTITUTE (Jan. 26, 2017), https://www.cato.org/blog/guidetrumps-executive-order-limit-migration-national-security-reasons. So, rather than
facing serious, irreparable consequences, Appellants’ compliance with the District
Court order will spare them the expense of reprocessing those who have already
been approved. The order is thus unlike those orders found to have irreparable
consequences because of “numerous costly obligations,” Valdivia v.
Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010), or interference with other
actions, see Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1097 (9th
Cir. 2008).
Finally, because the District Court is moving forward to hear the
preliminary injunction motion, Appellants will not be able to show the order “can
be effectively challenged only by immediate appeal.” Thompson v. Enomoto, 815
F.2d 1323, 1327 (9th Cir. 1987). Appellants will be able to present their
arguments on the constitutionality and importance of the Executive Order to this
Court after the District Court issues a final ruling. This Court found an order can
be effectively challenged by immediate appeal only when there are significant
costs to the party, and “[a] decision by us months or years after that cannot repair
the damage.” Valdivia, 599 F.3d at 988 (citing Negrete, 523 F.3d at 1097). But
Appellants have not demonstrated any cost to delaying implementation of the
Executive Order, nor have they established that the District Court will delay

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issuing a ruling for “months or years.” In short, “no aspect of the district court’s
ruling vitiates the [Appellants’] access to appellate review of the eventual outcome
of the district court’s decision.” Alsea Valley, 358 F.3d at 1184.
II.

THE JUDICIARY MUST ACT AS A CHECK ON PRESIDENTIAL
ACTIONS.
Appellants argue that this Court should not look behind the

President’s proffered explanation that his Executive Order was issued for
legitimate national security reasons, despite contemporaneous public statements by
the President and his advisers indicating that unlawful animus was in fact the prime
motivation. Supreme Court “precedents, old and new, make clear that concerns of
national security and foreign relations do not warrant abdication of the judicial
role.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Despite this
clear command to the contrary, Appellants insist that this Court must close its eyes
to the evident indications of animus.
Beginning as early as December 2015, and throughout the Presidential
campaign, President Trump repeatedly called for a “total and complete shutdown
of Muslims entering the United States.”3 Most recently, just two days after the

3

Press Release, Donald J. Trump for President, Inc., Donald J. Trump
Statement on Preventing Muslim Immigration (Dec. 7, 2015),
https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration.

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Executive Order was issued, former New York City Mayor and Trump advisor
Rudy Giuliani stated that the President sought to impose a “Muslim ban.”4
These statements, taken together, provide a strong basis for this Court
to decline to defer to the government’s purported national security rationale.
Courts have refused to take the government’s assertions at face value where there
is a risk of “complete deference in all facets of immigration law,” particularly
where the law “infringe[s] upon the Constitution.” Detroit Free Press v. Ashcroft,
303 F.3d 681, 685 (6th Cir. 2002). Here, Appellants seek to exclude whole nations
of individuals—without any individualized consideration—so it is difficult to
fathom what legitimate purpose the Executive Order could have. While Appellants
claim a national security interest, there is no basis to believe a national security
threat is posed by all nationals of the seven affected countries, much less nationals
of those countries who are now here as LPRs or whose visa applications have been
approved by the U.S. government. In the absence of some more concrete basis for
the stated national security rationale, reversing the TRO would set a precedent
preventing review of any alleged constitutional violations when the President
claims a national security interest.

4

Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and
ordered a commission to do it ‘legally,’ WASHINGTON POST (Janary 29,
2017).

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III.

THE EXECUTIVE ORDER CAUSES IRREPARABLE HARM TO
NUMEROUS INDIVIDUALS AND ORGANIZATIONS.
The Executive Order already has harmed—and, if the Temporary

Restraining Order is lifted, will continue to harm—numerous and varied categories
of people and organizations. These categories include, but are not limited to (1)
U.S. citizens and LPRs with family overseas, and those family members
themselves; (2) foreign nationals lawfully present in the United States with valid
immigrant and non-immigrant visas; (3) for-profit corporations that employ foreign
nationals; and (4) non-profit organizations that seek to serve refugees. Amici seek
to strengthen diversity and promote justice and equality. Connected by our
common humanity, amici believe that these groups’ interests reflect the broader
interests of American society. The individual and organizational harms faced by
these groups are irreparable, weighing against a stay of the TRO issued by the
District Court.
U.S. citizens, LPRs, and overseas visa applicants from Iraq, Iran,
Libya, Somalia, Sudan, Syria, or Yemen (together the “banned countries”) are
currently suffering concrete harms to their recognized liberty interest in
maintaining familial relationships, specifically in the right to live together as a
family. See Moore v. City of E. Cleveland, 431 U.S. 494 (1977). The Supreme
Court long has held that “the Constitution protects the sanctity of the family
precisely because the institution of the family is deeply rooted in this Nation’s
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history and tradition.” Id. at 503; see also Pierce v. Soc’y of Sisters, 268 U.S. 510
(1928); Meyer v. Nebraska, 262 U.S. 390 (1923).
By utilizing a discriminatory test to prevent U.S. citizens and LPRs
from sponsoring family members who are nationals of the seven targeted countries
for lawful permanent residence, the Executive Order violates the constitutional
rights of these U.S. citizens, LPRs, and overseas visa applicants to familial
relations. Specifically, it violates their right to the equal protection guarantee
inherent in the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe,
347 U.S. 497 (1954). It is beyond question that U.S. citizens, LPRs, and overseas
visa applicants have concrete Due Process interests at stake when the government
interferes with their familial relations on the basis of national origin.
That these harms to U.S. citizens, LPRs, and their family members
have resulted from the Executive Order is not speculative, but rather self-evident in
countless individual stories of husbands separated from wives5 and children

5

See, e.g., Decl. of Abdelaziq Adam, Ex. A; Decl. of Carol E. Edwards, Ex.
B; Decl. of Elias Abdi, Ex. C; Decl. of Jaffer Akhlaq Hussain, Ex D. The
declarations cited in and attached to this brief are from pleadings filed on
February 6, 2017 by the American Immigration Council, the National
Immigration Project of the National Lawyers Guild, and the Northwest
Immigrant Rights Project in Ali, et al. v. Trump, et al., No. 2:17-cv-00135JLR (W.D. Wash. 2017).

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separated from parents.6 Many of these separated family members have not been
able to see each other for years due to the already long and thorough vetting
process that foreign nationals must pursue to obtain visas.7 This lengthy process
also imposes significant financial hardship on the U.S.-based sponsors as they
sometimes must pay the visa application fees while supporting their separated
family members at a higher cost than if the family members were able to live with
them in the United States. See e.g., Decl. of Abdelaziq Adam, Ex. A ¶ 9. That
financial hardship will multiply if the TRO is lifted and their separation prolonged.
Additional economic harms resulting from canceled plane tickets and temporary
housing for those who had expected to travel to the United States rapidly reach into
the thousands of dollars. See, e.g., Decl. of Elias Abdi, Ex. C ¶ 5; Decl. of Ahmed
Mohammad Ahmed Ali, Ex. E ¶ 23. U.S. and LPR sponsors of family members
trying to escape war-torn countries such as Syria and Iraq also must grapple with
the emotional toll arising from constant fear for their loved ones’ safety. See, e.g.,
Decl. of Ghassan Tahhan, Ex. G ¶ 5. These U.S. citizens and LPRs, as well as the

6

See, e.g., Decl. of Ahmed Mohammed Ahmed Ali, Ex. E; Decl. of Azin
Safari, Ex. F; Decl. of Ghassan Tahhan, Ex. G; Decl. of Hesam Moazzami
Farahani, Ex. H; Decl. of Mohamed Barre Omar, Ex. I; Decl. of Nikoo
Niknejad, Ex. J.

7

Decl. of Azin Safari, Ex. F; Decl. of Hesam Moazzami Farahani, Ex. H.
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individuals they sponsor, are constitutionally protected and should be spared
further irreparable harm during the pendency of this litigation.
Foreign nationals from the banned countries already present in the
United States pursuant to lawful spousal, student, employment, and other
immigrant and non-immigrant visas also would suffer irreparable harm if the TRO
is stayed and the administration is once again allowed to enforce the Executive
Order. These foreign nationals are prevented from traveling internationally while
the Executive Order is in effect because they will be unable to re-enter despite their
valid visas. This ban on travel into the country – effectively operating as a ban on
travel out of the country – prevents students from seeing their families during
school breaks and inhibits the ability of employees to do business on a global scale.
It similarly prohibits travel to share once in a lifetime events with overseas family,
including births, weddings, and funerals, even if the destination is not one of the
banned countries.
Likewise, staying the TRO would inflict harm at the organizational
level. Non-profit organizations serving refugee communities in the United States,
including faith-based organizations, are prevented from fulfilling their missions
while the Executive Order is in effect because of its categorical ban on all refugees.
For-profit corporations and other enterprises are also harmed by the Executive

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Order.8 These companies rely on skilled foreign workers to fuel their innovation,
revenue generation, and job creation. Moreover, these workers must often be able
to travel to carry out corporate goals. The interruption to normal immigration
processes caused by the Executive Order materially harms these corporations’
ability to conduct business, hurting their bottom lines and the local economies they
support.
These individual and organizational harms are irreparable.
Individuals who are prevented from returning home, traveling for work, and
reuniting with family are suffering ongoing harms that can never be adequately
redressed. Whether the harms are lost profits and job opportunities, or graver ones
such as the threat of bodily harm or death of family members trapped in war-torn
countries, the District Court was correct to issue a TRO, and this Court should not
reverse that decision.
CONCLUSION
For the foregoing reasons, amici respectfully request that the Court
deny Appellants’ request for a stay.
Dated: February 6, 2017

Respectfully submitted,
/s/ Harrison (Buzz) Frahn

8

See generally Br. of Technology Companies and Other Businesses as Amici
Curiae in Support of Appellees. ECF No. 19.

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Harrison (Buzz) Frahn
Jonathan Mincer
SIMPSON THACHER & BARTLETT LLP
2475 Hanover Street
Palo Alto, California 94304
[phone]
[phone] (fax)
Counsel for Amici Curiae

16

CERTIFICATE OF COMPLIANCE WITH RULE 32(G)(1)
1. This brief complies with the type-volume limitations of Fed. R. App. P.
29 and 32(a)(7)(B) because it contains 3159 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and amici have requested leave to
file a 16-page brief.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word in 14 point
Times New Roman font.

/s/ Harrison (Buzz) Frahn
Harrison (Buzz) Frahn
Jonathan Mincer
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/EMF system.
I hereby certify that on February 6, 2017, the foregoing document was
served on all parties or their counsel of record through the CM/EMF system.
/s/ Jonathan Mincer
Jonathan Mincer
Counsel for Amici Curiae

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