State of Hawaii v. Trump

Filing 140

MOTION for Leave to File Brief of the National Asian Pacific American Bar Association as Amicus Curiae in Support of Plaintiffs Pamela W. Bunn appearing for Amicus National Asian Pacific American Bar Association (Attachments: # 1 Exhibit "A" - Brief, # 2 Certificate of Service)(Bunn, Pamela)

ALSTON HUNT FLOYD & ING

McDERMOTT WILL & EMERY LLP

PAMELA W. BUNN
6460
JOHN RHEE
9681
1001 Bishop Street, Suite 1800
Honolulu, Hawai‘i 96813
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]

JAMES W. KIM (pro hac vice pending)
The McDermott Building
500 North Capitol Street, N.W.
Washington, DC 20001
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[e-mail]
Attorneys for Amicus Curiae

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,

Case No. 1:17-CV-00050 DKW-KSC

Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of Homeland Security; U.S.
DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,

BRIEF OF THE NATIONAL
ASIAN PACIFIC AMERICAN BAR
ASSOCIATION AS AMICUS
CURIAE IN SUPPORT OF
PLAINTIFFS; CERTIFICATE OF
SERVICE
Hearing Date: March 15, 2017
Hearing Time: 9:30 a.m.
Hearing Judge:
The Honorable Derrick K. Watson

Defendants.

EXHIBIT "A"

ADDITIONAL COUNSEL
NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION
TINA MATSUOKA (pro hac vice pending)
MEREDITH S.H. HIGASHI (pro hac vice pending)
NAVDEEP SINGH (pro hac vice pending)
RACHANA PATHAK (pro hac vice pending)
1612 K Street NW, Suite 510
Washington D.C. 20006
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
[e-mail]
[e-mail]

-ii-

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... ii 
INTEREST OF AMICUS CURIAE...........................................................................1 
ARGUMENT ............................................................................................................1 
I. 

Executive Order History. ................................................................................1 

II. 

Congress Prohibited Nationality-Based Discrimination To Reverse a
Long History of Injustice. ...............................................................................2 
A. 
B. 

III. 

The Revised Order Echoes Historical Discrimination in the
Application of Immigration Laws Based upon National Origin. .........3 
In 1965, Congress and President Lyndon B. Johnson
Dismantled Immigration Quotas Based upon Nationality and
Generally Barred Distinctions Based upon “Race, Sex,
Nationality, Place of Birth, or Place of Residence.” ..........................10 

The Executive Order Violates 8 U.S.C. § 1152(a)(1)(A)’s Bar on
Nationality-Based Discrimination. ...............................................................13 
A. 
B. 

IV. 

The 1965 Immigration and Nationality Act Amendments
Prohibit Discrimination Related to National Origin. .........................14 
The Legislative History of 8 U.S.C. § 1152(a)(1)(A) Further
Supports the Broad Prohibition on Nationality-Based
Discrimination. ...................................................................................16 

Statutory Limits Constrain the Executive’s Discretion Related to
Immigration and Refugee Admission. ..........................................................18 
A. 

The Discretion of the Executive Is Limited by Statute. .....................19 

B. 

The Executive’s Discretion over Admission of Aliens Is
Subject to Review if Based on Bad Faith...........................................23 

CONCLUSION .......................................................................................................25 

i

TABLE OF AUTHORITIES
Cases
Abdullah v. INS,
184 F.3d 158 (2d Cir. 1999) ........................................................................... 15
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986), aff’d mem., 484 U.S. 1 (1987) ................... 20
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988)......................................................................... 20
American Academy of Religion v. Napolitano,
573 F.3d 115 (2d Cir. 2009) ........................................................................... 23
Arizona v. United States,
132 S. Ct. 2492 (2012)................................................................................... 19
Aziz v. Trump,
No. 117CV116LMBTCB, 2017 WL 580855 (E.D. Va. Feb. 13,
2017) .............................................................................................................. 24
Bertrand v. Sava,
684 F.2d 204 (2d Cir.1982) ............................................................................ 14
Boumediene v. Bush,
553 U.S. 723 (2008)...................................................................................2, 18
Chau v. Dep’t of State,
891 F. Supp. 650 (D.D.C. 1995) .................................................................... 15
Freytag v. Commissioner,
501 U.S. 868 (1991)....................................................................................... 19
Galvan v. Press,
347 U.S. 522 (1954)....................................................................................... 19
Hampton v. Mow Sun Wong,
426 U.S. 88 (1976)......................................................................................... 23
ii

INS v. Chadha,
462 U.S. 919 (1983)....................................................................................... 19
Kerry v. Din,
135 S. Ct. 2128 (2015).............................................................................20, 23
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State
(“LAVAS”),
45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds, 519
U.S. 1 (1996)......................................................................................14, 15, 20
Mow Sun Wong v. Campbell,
626 F.2d 739 (9th Cir. 1980) .......................................................................... 23
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ...................................................................... 14
Washington v. Trump,
No. 17-35105, slip op. (9th Cir. Feb. 9, 2017) ..........................................1, 18
Wong Wing Hang v. INS,
360 F.2d 715 (2d Cir. 1966) ........................................................................... 14
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952)....................................................................................... 21
Zadvydas v. Davis,
533 U.S. 678 (2001).............................................................................2, 18, 23
Zivotofsky v. Clinton,
566 U.S. 189 (2012)....................................................................................... 19
Statutes and Rules
Act of Mar. 3, 1875 (or Page Act), ch. 141, 18 Stat. 477 .......................................... 5
Act of Apr. 29, 1902, Pub. L. No. 57-90, 32 Stat. 176 .............................................. 6
Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) .............................................. 5, 6
Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 904 ............................ 22

iii

Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942) ......................................... 9
Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (“Original
Order”) ...............................................................................1, 2, 19, 21, 22, 24
Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Revised
Order”) ...................................................................................................passim
Filipino Repatriation Act, Pub. L. No. 74-202, 49 Stat. 478 (1935) ......................... 8
Geary Act, ch. 60, 27 Stat. 25 (1892) ........................................................................ 6
Immigration Act of 1917, Pub. L. No. 64-301, 39 Stat. 847 ..................................... 7
Immigration Act of 1924 (or Asian Exclusion Act), Pub. L. No. 68139, 43 Stat. 153 .............................................................................................. 7
Immigration and Nationality Act (or McCarran–Walter Act), Pub. L.
No. 82-414, 66 Stat. 163 (1952) .................................................................... 10
Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat.
911............................................................................................................10, 19
Luce–Celler Act, Pub. L. No. 79-483, 60 Stat. 416 (1946) ..................................... 10
Magnuson Act of 1943 (or Chinese Exclusion Repeal Act), Pub. L.
No. 78-199, 57 Stat. 600 ................................................................................ 10
Naturalization Act of 1870, ch. 254, 16 Stat. 254...................................................... 5
Tydings–McDuffie Act, Pub. L. No. 73-127, 48 Stat. 456 (1934) ............................ 8
8 U.S.C. § 1101 ........................................................................................................ 11
8 U.S.C. § 1151 ........................................................................................................ 11
8 U.S.C. § 1152 ............................................................................ 2, 11, 13, 14, 15, 16
8 U.S.C. § 1153 ........................................................................................................ 11
8 U.S.C. § 1182 ..................................................................................................20, 21

iv

Other Authorities
Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration
Law: A New Look at the Immigration and Nationality Act of
1965, 75 N.C. L. Rev. 273 (1996) ................................................................. 11
Bill Ong Hing, Making and Remaking Asian America Through
Immigration Policy, 1850–1990 (1993) ..............................................3, 4, 6, 8
H.R. Res. 683, 112th Cong. (2012) .......................................................................... 12
Victor M. Hwang, Brief of Amici Curiae Asian Pacific Islander Legal
Outreach and 28 Asian Pacific American Organizations, in
support of all respondents in the Six Consolidated Marriage
Cases, Lancy Woo and Cristy Chung, et al., Respondents, v. Bill
Lockyer, et al., Appellants on Appeal to the Court of Appeal of
the State of California, First Appellate District, Division Three,
13 Asian Am. L.J. 119 (2006).......................................................................... 6
John F. Kennedy, Remarks to Delegates of the American Committee
on Italian Migration (June 11, 1963) ............................................................. 10
Erika Lee, The Making of Asian America: A History (2015) ..................4, 7, 8, 9, 10
National Park Service, Honouliuli National Monument: Historical
Overview .......................................................................................................... 9
1907 Bellingham Riots, Seattle Civil Rights & Labor History Project ..................... 7
George Anthony Peffer, Forbidden Families: Emigration Experiences
of Chinese Women Under the Page Law, 1875–1882, 6 J. Am.
Ethnic Hist. 28 (1986). .................................................................................... 5
Karthick Ramakrishnan & Farah Z. Ahmad, State of Asian Americans
and Pacific Islanders Series: A Multifaceted Portrait of a
Growing Population (Sept. 2014).................................................................. 11
Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of
“Foreignness” in the Construction of Asian American Legal
Identity, 4 Asian Am. L.J. 71 (1997) ............................................................... 4

v

S. Res. 201, 112th Cong. (2011) .............................................................................. 12
Oscar M. Trelles II & James F. Bailey III, Immigration Nationality
Acts, Legislative Histories and Related Documents 1950–1978
(1979) .................................................................................................16, 17, 18
Donald J. Trump, Statement on Preventing Muslim Immigration (Dec.
7, 2015) .......................................................................................................... 24
U.S. Dep’t of Justice, Confession of Error: The Solicitor General’s
Mistakes During the Japanese-American Internment Cases
(May 20, 2011) .............................................................................................. 21
Helen Zia, Asian American Dreams: The Emergence of An American
People (2000)................................................................................................... 4

vi

INTEREST OF AMICUS CURIAE
The National Asian Pacific American Bar Association (“NAPABA”) is the
national association of Asian Pacific American attorneys, judges, law professors,
and law students, representing the interests of over seventy-five state and local
Asian Pacific American bar associations and nearly 50,000 attorneys who work in
solo practices, large firms, corporations, legal services organizations, nonprofit
organizations, law schools, and government agencies. Since its inception in 1988,
NAPABA has served as the national voice for Asian Pacific Americans in the legal
profession and has promoted justice, equity, and opportunity for Asian Pacific
Americans. In furtherance of its mission, NAPABA opposes discrimination,
including on the basis of race, religion, and national origin, and promotes the
equitable treatment of all under the law.
ARGUMENT
I.

Executive Order History.
On January 27, 2017, President Donald J. Trump issued Executive

Order No. 13769, 82 Fed. Reg. 8977, titled, “Protecting the Nation from Foreign
Terrorist Entry into the United States” (“Original Order”). The Original Order was
temporarily enjoined by multiple courts, including the U.S. District Court for the
Western District of Washington, whose order the U.S. Court of Appeals for the
Ninth Circuit declined to stay. Washington v. Trump, No. 17-35105, slip op. at 13–
1

14 (9th Cir. Feb. 9, 2017) (finding “no precedent to support” Defendants’ claim of
unreviewable presidential discretion in the area of immigration policy, and
observing that Defendants’ argument “runs contrary to the fundamental structure of
our constitutional democracy”) (citing Boumediene v. Bush, 553 U.S. 723, 765
(2008)).1
On March 6, 2017, the President signed Executive Order No. 13780, 82 Fed.
Reg. 13209, with the same title (“Revised Order”), replacing the Original Order
and maintaining many of the same restrictions, including restricting granting of
visas to individuals from six of the original seven nations based upon their country
of origin. In doing so, the Revised Order violated fundamental statutory
limitations on the Executive’s exercise of immigration and admissions
determinations that reflect and promote constitutional guarantees of due process
and equal protection.
II.

Congress Prohibited Nationality-Based Discrimination to Reverse a
Long History of Injustice.
During the heart of the Civil Rights Era, Congress enacted and President

Lyndon Johnson signed the Immigration and Nationality Act of 1965, Pub. L. No.
89-236, 79 Stat. 911, to prohibit preference, priority, or discrimination in the
1

See also, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (even in the
context of immigration law, congressional and executive power “is subject to
important constitutional limitations”).
2

issuance of immigrant visas due to “race, sex, nationality, place of birth, or place of
residence.” 8 U.S.C. § 1152(a)(1)(A). This provision marked a firm break from
the country’s long history of invidious discrimination in immigration. It also
sought to prevent the country from repeating the errors of its past. The terms of the
Revised Order depart from Section 1152(a)(1)(A)’s unambiguous rule as applied
by courts to admission decisions and, accordingly, must be set aside as contrary to
law.
A.

The Revised Order Echoes Historical Discrimination in the
Application of Immigration Laws Based upon National Origin.

Asian Pacific Americans are acutely familiar with the impact of exclusionary
laws, having historically been the subjects of systematic and increasingly
expansive immigration restrictions by Congress that reflected and validated
offensive stereotypes. The state of Hawaii’s pronounced and pervasive experience
with restrictions on Asian and Pacific Islander migration reflects the complex
history and legacy shaped by these policies. In Hawai‘i, the expanding sugarcane
industry during the mid-1800s spurred the recruitment of laborers from Asia and
other regions. Bill Ong Hing, Making and Remaking Asian America Through
Immigration Policy, 1850–1990, at 36 (1993). Chinese migrants comprised the
first of these laborers and eventually, Japanese laborers became the largest group,
while Filipinos, Koreans, Portuguese, and Puerto Rican workers, along with others,

3

joined them to form the backbone of the plantation and industry workforce,
establishing significant populations of several diverse groups in Hawai‘i before
annexation. See Erika Lee, The Making of Asian America: A History 74 (2015);
Hing, supra, at 27; Helen Zia, Asian American Dreams: The Emergence of An
American People 36–37 (2000). After Hawai‘i became a U.S. territory in 1900,
the closing and opening of waves of immigrant labor from different Asian
countries reflected the restrictions of U.S. immigration laws.
Asians first began migrating to the U.S. mainland in significant numbers in
the mid-1800s, with Chinese nationals being the earliest sizeable group. See Hing,
supra, at 19–20. As conditions weakened in their homelands, economic
opportunity beckoned Asian laborers to the United States. The discovery of gold
and westward expansion fueled demand for low-wage labor. Industrial employers
actively recruited Chinese nationals to fill some of the most demanding jobs,
particularly in domestic service, mining, and railroad construction. Id. at 20.
However, the resulting growth in the immigrant labor population also
instilled anger and resentment among native-born workers eager for work and
better wages. Id. at 21. Chinese immigrants, in particular, became targets of fierce
hostility and violence. The so-called “Yellow Peril” refers to the widespread
characterization of Chinese immigrants as “unassimilable aliens” with peculiar and
threatening qualities. See Natsu Taylor Saito, Model Minority, Yellow Peril:

4

Functions of “Foreignness” in the Construction of Asian American Legal Identity,
4 Asian Am. L.J. 71, 86–89 (1997).
Rather than countering such xenophobia and racism, Congress facilitated it
by passing a series of laws that discouraged and ultimately barred immigration
from China and other Asian countries. These laws marked the first time the federal
government broadly enacted and enforced an immigration admissions policy that
defined itself based on who it excluded.2 The first such law came toward the tail
end of Reconstruction, when Congress enacted the Page Act. Act of Mar. 3, 1875,
ch. 141, 18 Stat. 477. Barring the entry of Asian immigrants considered
“undesirable,” the Page Act was largely enforced against Asian women, who were
presumed to be prostitutes simply by virtue of their ethnicity. See George Anthony
Peffer, Forbidden Families: Emigration Experiences of Chinese Women Under the
Page Law, 1875–1882, 6 J. Am. Ethnic Hist. 28, 28–46 (1986). A few years later,
Congress responded to persistent anti-Chinese fervor with the Chinese Exclusion
Act on May 6, 1882, ch. 126, 22 Stat. 58, the first federal law to exclude people on
the basis of their nationality. On the premise that the “coming of Chinese laborers
. . . endanger[ed] the good order” of areas in the United States, the Act provided

2

Naturalization and citizenship laws have always limited the scope of who
could be a citizen, but the same was not so for rules on entry to the United States.
The Naturalization Act of 1870, ch. 254, 16 Stat. 254, which barred Asians from
naturalization, prefaced the era of Asian exclusion.
5

that “[i]t shall not be lawful for any Chinese laborer to come, or, having so come
after the expiration of said ninety days, to remain within the United States.” Id.
§ 1, 22 Stat. at 59. The Chinese Exclusion Act halted immigration of Chinese
laborers for ten years, prohibited Chinese nationals from becoming U.S. citizens,
and uniquely burdened Chinese laborers who were already legally present and
wished to leave and re-enter the United States. Congress first extended the
exclusion period by ten years in 1892 with the Geary Act, ch. 60, 27 Stat. 25, and
then indefinitely in 1902, Act of Apr. 29, 1902, Pub. L. No. 57-90, 32 Stat. 176.
Immigration restrictions were also expanded to other Asian groups. After
the Chinese exclusion laws foreclosed employers from importing Chinese laborers,
immigrants began coming in larger numbers from Japan, Korea, India, and the
Philippines. See Hing, supra, at 27–31. As with the Chinese nationals before
them, these immigrants and others, including southern and eastern Europeans,
encountered strong nativist opposition as their numbers rose. Id. at 32.
The exclusionary policies of the U.S. government enforced and validated
xenophobic sentiments and enabled violent backlash from nativist Americans. For
example, the Asiatic Exclusion League was established in the early 20th century to
prevent the immigration by people of Asian origin to the United States and Canada,

6

which had a similar nationality-based system of immigration at the time.3 On
September 4, 1907, the Asiatic Exclusion League and labor unions led the
“Bellingham Riots” in Bellingham, Washington, to expel South Asian immigrants
working in local lumber mills. See 1907 Bellingham Riots, Seattle Civil Rights &
Labor History Project, available at
http://depts.washington.edu/civilr/bham_intro.htm. See also Lee at 163-4 (the riots
were the latest in series of anti-Asian violence targeting Chinese, Japanese, and
South Asian laborers since the late-1800s).
Congress responded in the same way that it had to the perceived threat of
Chinese immigrants to these growing populations. The Immigration Act of 1917,
Pub. L. No. 64-301, 39 Stat. 847, catered to nativist preferences by creating the
“Asiatic Barred Zone,” which extended the Chinese exclusion laws to include
nationals of other countries in South Asia, Southeast Asia, the Polynesian Islands,

3

See Victor M. Hwang, Brief of Amici Curiae Asian Pacific Islander Legal
Outreach and 28 Asian Pacific American Organizations, in support of all
respondents in the Six Consolidated Marriage Cases, Lancy Woo and Cristy
Chung, et al., Respondents, v. Bill Lockyer, et al., Appellants on Appeal to the
Court of Appeal of the State of California, First Appellate District, Division Three,
13 Asian Am. L.J. 119, 132 (2006) (the Asiatic Exclusion League was formed for
the stated purpose of preserving “the Caucasian race upon American soil . . . [by]
adoption of all possible measures to prevent or minimize the immigration of
Asiatics to America” (internal quotation marks omitted)).
7

and parts of Central Asia.4 A few years later, the odious Immigration Act of 1924,
or Asian Exclusion Act, Pub. L. No. 68-139, 43 Stat. 153, set immigration caps
based upon national origin and prohibited the immigration of persons ineligible to
become citizens, which prevented persons from Asian countries from immigrating
altogether.
Because of then-U.S. jurisdiction over the Philippines, Filipinos were still
able to migrate to Hawai‘i and the mainland. Lee, supra, at 157. However, U.S.
citizenship remained out of reach and Filipinos could not escape racial animus, as
they were seen to present an economic threat and to “upset the existing racial
hierarchy between whites and nonwhites.” Id. at 157, 185. Anti-Filipino agitation
culminated in passage of the Tydings–McDuffie Act in 1934, Pub. L. No. 73-127,
48 Stat. 456, which granted independence to the Philippines and changed the status
of Filipinos from U.S. nationals to “aliens” now subject to the same restrictions as
other Asian groups. The next year, Filipino nationals already in the United States
became subject to deportation and repatriation. Filipino Repatriation Act, Pub. L.
No. 74-202, 49 Stat. 478 (1935).5

4

An executive agreement, the Gentlemen’s Agreement, reached in 1907 and
1908 restricted the immigration of Japanese laborers, as well as Koreans, whose
nation was under Japanese forced occupation between the years of 1910 and 1945.
See Hing, supra, at 29.
5

The idea, still prevalent today, that race keeps one from being an American
particularly resonated with Filipinos affected by the new restrictions: “We have
8

Although Congress stopped passing new laws to restrict immigration from
Asia in 1934, as admissions had effectively been halted, tight quotas and antiAsian sentiment persisted. Most notably, the exclusionary racism and xenophobia
underpinning these laws crystallized and escalated during World War II, when the
U.S. government forcibly incarcerated over 110,000 permanent residents and U.S.
citizens in internment camps on the basis of their Japanese ancestry.6

come to the land of the Free and where the people are treated equal only to find
ourselves without constitutional rights . . . . We . . . did not realize that our oriental
origin barred us as human being in the eyes of the law.” Lee, supra, at 185 (citing
June 6, 1935 letter from Pedro B. Duncan of New York City to the Secretary of
Labor and other letters).
6

See Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942). For a further
discussion of the improper justification for the Japanese American incarceration,
see the amicus brief for the Fred T. Korematsu Center for Law and Equality. The
majority of those incarcerated were living on the West Coast mainland. In Hawai‘i,
where more than one-third of the population was of Japanese ancestry, the logistics
of confining such a large number of people and the need for their labor resulted in
the more selective incarceration of 2,000 individuals. Some were removed to the
mainland, while others were incarcerated at the Honouliuli camp in Hawai‘i
alongside foreign prisoners of war. See National Park Service, Honouliuli National
Monument: Historical Overview, available at
https://www.nps.gov/hono/learn/historical-overview.htm (last visited Mar. 11,
2017).
9

B.

In 1965, Congress and President Johnson Dismantled
Immigration Quotas Based upon Nationality and Generally
Barred Distinctions Based upon “Race, Sex, Nationality, Place of
Birth, or Place of Residence.”

Starting during World War II and continuing over the next twenty years,
Congress gradually loosened restrictions on Asian immigration to further the
United States’ interests on the world stage. In 1965, Congress broadly prohibited
discrimination based on race and national origin in the context of immigration,
imposing statutory constraints that the Revised Order simply cannot overcome.
At the urging of President Franklin D. Roosevelt, who emphasized
America’s alliance with China and called the exclusion of its citizens by the United
States “a historic mistake,” Lee, supra, at 256, Congress repealed the Chinese
exclusion laws with the Magnuson Act of 1943 (or Chinese Exclusion Repeal Act),
Pub. L. No. 78-199, 57 Stat. 600, and replaced them with a tight quota of 105 visas
per year. In 1946, the Luce–Celler Act, Pub. L. No. 79-483, 60 Stat. 416, similarly
allowed 100 Filipinos and Indians, each, to immigrate per year and permitted their
naturalization.7 In 1952, the Immigration and Nationality Act (or McCarran–
Walter Act), Pub. L. No. 82-414, 66 Stat. 163, repealed the Asiatic Barred Zone
7

This bill allowed Dalip Singh Saund to become a naturalized citizen. He
would become the first Asian Pacific American Member of Congress. See Lee,
supra, at 373-5, 392.
10

and eliminated the racial bar on citizenship, yet retained national origin quotas that
heavily favored immigration from northern and western Europe.
After decades of moderately more permissive but highly regimented
immigration quotas tied to prospective immigrants’ countries of origin, the
Immigration and Nationality Act of 1965 marked a dramatic turning point. Like
Presidents Harry S. Truman and Dwight D. Eisenhower before him, President John
F. Kennedy opposed the national origins quota system, calling the system “nearly
intolerable” and inequitable. Remarks to Delegates of the American Committee on
Italian Migration (June 11, 1963), available at
http://www.presidency.ucsb.edu/ws/?pid=9269. In 1965, Congress finally agreed,
abolishing the national origins quotas in an act signed by President Johnson and
providing that “[e]xcept as specifically provided” in certain subsections,8 “no
person shall receive any preference or priority or be discriminated against in the
issuance of an immigrant visa because of the person’s race, sex, nationality, place
of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). Consistent with the
contemporaneous and monumental Civil Rights Act of 1964, which outlawed

8

The excepted subsections address “Per country levels for family-sponsored
and employment-based immigrants,” 8 U.S.C. § 1152(a)(2), statutory creation of
“special immigrant” categories for preferred treatment (e.g. certain Panamanian
nationals who worked in the Canal Zone, etc.), 8 U.S.C. § 1101(a)(27), admission
of immediate relatives of U.S. citizens, 8 U.S.C. § 1151(b)(2)(A)(i), and the
statutorily-created system of allocation of immigrant visas, 8 U.S.C. § 1153.
11

discrimination on the basis of “race color, religion, sex, or national origin,” and the
Voting Rights Act of 1965, the Immigration and Nationality Act of 1965 marked a
firm departure from the United States’ past reliance upon such characteristics. See
Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New
Look at the Immigration and Nationality Act of 1965, 75 N.C. L. Rev. 273 (1996).
The reopening of America’s doors in 1965 transformed the Asian Pacific
American community. Today nearly two-thirds of the country’s Asian Pacific
American population is foreign-born. Karthick Ramakrishnan & Farah Z. Ahmad,
State of Asian Americans and Pacific Islanders Series: A Multifaceted Portrait of a
Growing Population 23 (Sept. 2014), available at http://aapidata.com/wpcontent/uploads/2015/10/AAPIData-CAP-report.pdf. The experience of many
Asian Pacific American families in the United States began with the opportunity to
immigrate that was denied to their ancestors. But even the relaxation of the
immigration laws did not erase the harmful legacies of those earlier laws, which
tore apart families, denied lawful immigrants the right to naturalize and the rights
that accompany citizenship, and dignified with the force of law the xenophobia,
racism, and invidious stereotypes that many Americans held of Asians. Indeed, for
many of these reasons, Congress recently reaffirmed its condemnation of the
Chinese exclusion laws with the passage of resolutions expressing regret for those
laws. S. Res. 201, 112th Cong. (2011); H.R. Res. 683, 112th Cong. (2012). The

12

Senate resolution explicitly recognized that “[the] framework of anti-Chinese
legislation, including the Chinese Exclusion Act, is incompatible with the basic
founding principles recognized in the Declaration of Independence that all persons
are created equal.” S. Res. 201, supra.
Having long been the subject of exclusionary immigration laws, Asian
Pacific Americans know the lasting pain and injury that result from the use of
national origin as a basis for preference or discrimination in immigration laws.
The Revised Order is an unwelcome return to a pre-Civil Rights Era approach to
immigration when prospective immigrants were admitted based not on their
applications, but upon ugly stereotypes about the citizens of their countries of
origin. For the reasons set forth in this brief, as well as the briefs submitted by the
State of Hawai‘i and various other amici curiae, the Court should enjoin its
enforcement.
III.

The Executive Order Violates 8 U.S.C. § 1152(a)(1)(A)’s Bar on
Nationality-Based Discrimination. 
As set forth in Part II, Congress in the Civil Rights Era rejected the

discriminatory immigration policies of the past. The Immigration and Nationality
Act amendments in 1965, and in particular Section 1152(a)(1)(A), disavowed
discrimination on the basis of race and national origin in the issuance of immigrant
visas.

13

A.

The 1965 Immigration and Nationality Act Amendments Prohibit
Discrimination Related to National Origin.

Since the Immigration and Nationality Act was amended in 1965, courts
have consistently held that the government cannot discriminate on the basis of
nationality in the immigration context. See 8 U.S.C. § 1152(a)(1)(A) (“Except as
specifically provided in paragraph (2) and in sections 1101(a)(27),
1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or
priority or be discriminated against in the issuance of an immigrant visa because of
the person’s race, sex, nationality, place of birth, or place of residence.”). Courts
interpreting this provision have found that “Congress could hardly have chosen
more explicit language” in barring discrimination against the issuance of a visa
because of a person’s nationality or place of residence. See Legal Assistance for
Vietnamese Asylum Seekers v. Dep’t of State (“LAVAS”), 45 F.3d 469, 472–73 (D.C.
Cir. 1995) (finding “Congress has unambiguously directed that no nationalitybased discrimination shall occur”), vacated on other grounds, 519 U.S. 1 (1996).
Although Congress delegated to the Executive Branch considerable authority to
prescribe conditions of admission to the United States, courts have affirmed that
the Executive Branch may not make such determinations on impermissible bases
such as “invidious discrimination against a particular race or group.” Wong Wing
Hang v. INS, 360 F.2d 715 (2d Cir. 1966) (concluding that nationality is an

14

impermissible basis for deportation); see also Abdullah v. INS, 184 F.3d 158, 166–
67 (2d Cir. 1999) (“[T]he Constitution does “not permit an immigration official, in
the absence of [lawful quota] policies, to . . . discriminate on the basis of race and
national origin.”) (citing Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d Cir.1982)).
Courts have found that Executive Branch policies are discriminatory and
contravene Section 1152(a)(1)(A) when “based on impermissible generalizations
and stereotypes,” see Olsen v. Albright, 990 F. Supp. 31, 38 (D.D.C. 1997), which
are the very bases upon which the Revised Order singles out individuals from the
six Muslim-majority countries for discriminatory treatment. Executive Branch
actions that contravene Congress’s mandate in 8 U.S.C. § 1152(a)(1)(A) must be
set aside. See LAVAS, 45 F.3d at 474 (“The interpretation and application of the
regulation so as to discriminate against Vietnamese on the basis of their nationality
is in violation of the Act, and therefore not in accordance with law.”); see also
Chau v. Dep’t of State, 891 F. Supp. 650 (D.D.C. 1995) (citing LAVAS and issuing
preliminary injunctive relief holding that department policy discriminated against
immigrants based on their nationality and therefore is not “in accordance with
law”).

15

B.

The Legislative History of 8 U.S.C. § 1152(a)(1)(A) Further
Supports the Broad Prohibition on Nationality-Based
Discrimination.

The legislative history surrounding the enactment of 8 U.S.C.
§ 1152(a)(1)(A) confirms that Congress intended to reject and repudiate the
“national origins system” as an inequitable and irrelevant basis for admission
decisions. For instance, a member of Congress opined that the system
“embarrasse[d] us in the eyes of other nations, . . . create[d] cruel and unnecessary
hardship for many of our own citizens with relatives abroad, and . . . [was] a source
of loss to the economic and creative strength of our country.” 9 Oscar M. Trelles II
& James F. Bailey III, Immigration Nationality Acts, Legislative Histories and
Related Documents 1950–1978, at 417 (1979). For citizens with relatives abroad,
Attorney General Robert F. Kennedy lamented that the national origins system
“separate[d] families coldly and arbitrarily.” 10-A Trelles & Bailey, supra, at 411.
Indeed, the record confirms Congress overwhelmingly regarded the system as an
outdated, arbitrary, and above all, un-American, basis upon which to decide who to
admit to the country.
Statements in the legislative history resoundingly denounced the use of
nationality to make immigration decisions, as it furthered the un-American belief
that individuals born in in certain countries were more desirable or worthy of

16

admission than those from others. As explained above, nationals of Asian
countries were subject to nationality-based immigration restrictions justified on the
basis of unfounded and unjust stereotypes for nearly a century before the United
States adopted the current system of race and country of origin neutral immigration
determinations. Several members of Congress echoed President Johnson’s
sentiments, when in 1963 he wrote in a letter to Congress:
The use of a national origins system is without basis in either logic or
reason. It neither satisfies a national need nor accomplishes an
international purpose. In an age of interdependence among nations,
such a system is an anachronism, for it discriminates among
admission into the United States on the basis of accident of birth.
9 Trelles & Bailey, supra, at 2. President Johnson’s aforementioned reference to
prohibiting discrimination in “admission into the United States,” confirms the
contemporaneous understanding that the 1965 Act foreclosed discrimination in
admission as well as immigration. And, as Attorney General Robert F. Kennedy
explained in a 1963 letter to Congress, the national origins system “separate[d]
families coldly and arbitrarily.” 10-A Trelles & Bailey, supra, at 411. It would be
perverse if the remedy for this animating concern for the 1965 Act was to ensure
equality for family members seeking to immigrate to the country, but not for those
foreign nationals who merely wanted to visit family in the United States. Later,
during Congressional hearings on the 1965 Act, Attorney General Kennedy
contended that abolition of the national origins system sought:

17

not to penalize an individual because of the country that he comes
from or the country in which he was born, not to make some of our
people feel as if they were second-class citizens. . . . [abolition of the
national origins system] will promote the interests of the United States
and will remove legislation which is a continuous insult to countries
abroad, many of whom are closely allied with us.
9 Trelles & Bailey, supra, at 420. Again, if certain citizens’ relatives who are
foreign nationals are barred from entering the country, or are prohibited from
obtaining visas on equal footing, they cannot help but feel that they are themselves
“second-class citizens.”
IV.

Statutory Limits Constrain the Executive’s Discretion Related to
Immigration and Refugee Admission.
Presidential discretion in the general area of immigration and refugee

admission may be broad, but it is not boundless. The President must either operate
within the confines of the authority and discretion afforded by Congress (in
legislation signed by the current or a preceding president) or the President must
take the position that the power to act was inherent and Congress lacked the
constitutional authority to impose the relevant constraint found in the Immigration
and Nationality Act of 1965 in the first place. In either case, no matter how broad
the claim of executive discretion, the President cannot ignore the Bill of Rights, the
Fourteenth Amendment, or other provisions of the Constitution—a proposition for
which this Court need look no further than the Ninth Circuit’s decision last month
denying these Defendants’ motion to stay Judge Robart’s order from the Western
18

District of Washington temporarily enjoining enforcement of the Original Order,
which discriminated against immigrants on the basis of national origin. See
Washington, slip op. at 13‒14 (finding “no precedent to support” Defendants’ claim
of unreviewable presidential discretion in the area of immigration policy, and
observing that Defendants’ argument “runs contrary to the fundamental structure of
our constitutional democracy”) (citing Boumediene, 553 U.S. at 765).9 Here, the
only specific bases for authority cited in the Revised Order are statutory: “the
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of
title 3, United States Code.” Revised Order at 1.10
A.

The Discretion of the Executive Is Limited by Statute.

When the President’s authority to act arises from statute, he must adhere to
the bounds set by Congress. Zivotofsky v. Clinton, 566 U.S. 189, 196–97 (2012)
9

See also Zadvydas, 533 U.S. at 695 (even in the context of immigration
law, congressional and executive power “is subject to important constitutional
limitations”).
10

The Revised Order also refers generally to authority vested “by the
Constitution and the laws of America” but cites no specific Constitutional
provision or authority. Any claims to inherent constitutional authority over
admission of aliens, notwithstanding a contrary statute, would fly in the face of
well-established doctrine explained in section A.1. of Hawai‘i’s brief in support of
its Motion for Temporary Restraining Order. See Br. at 24 (quoting Arizona v.
United States, 132 S. Ct. 2492, 2507 (2012), and Galvan v. Press, 347 U.S. 522,
531 (1954), for the proposition that the Framers “ ‘entrust[ed] exclusively to
Congress’ . . . the power to set ‘[p]olicies pertaining to the entry of aliens and their
right to remain here.’ ” (emphasis added)); see also INS v. Chadha, 462 U.S. 919,
940–41 (1983) (“The plenary authority of Congress over aliens under Art. I, § 8, cl.
4, is not open to question . . . .”).
19

(quoting Freytag v. Commissioner, 501 U.S. 868, 878 (1991)). In 1965, through
amendments to the Immigration and Nationality Act, Congress and President
Johnson specifically placed outside those bounds of executive authority and
discretion any preference, priority, or discrimination in immigration based on
nationality, place of birth, or place of residence, among other characteristics. Pub.
L. No. 89-236 (1965) (codified at 8 U.S.C. § 1152(a)(1)(A)). The United States
Court of Appeals for the District of Columbia Circuit has interpreted this provision
to apply to admission of foreign nationals as well, holding that “Congress has
unambiguously directed that no nationality-based discrimination shall occur.”
LAVAS, 45 F.3d at 472–73. This is consistent with the legislative history of the
1965 Act. See supra Part III.B.
Defendants’ expected reliance upon 8 U.S.C. § 1182(f), which permits
exclusion based upon “association with terrorist organizations,” to presumptively
exclude all citizens of six nations as potential terrorists, is unavailing. Because
Congress has already provided “specific criteria for determining terrorism related
inadmissibility,” Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J.,
concurring), the President’s exclusionary authority under Section 1182(f), is
implicitly constrained. Thus, Justice Kennedy’s controlling opinion explains that
the Executive’s authority to exclude an individual from admission on the basis of
claimed terrorist activity “rest[s] on a determination that [he or she does] not

20

satisfy the . . . requirements” of 8 U.S.C. § 1182(a)(3)(B). Id. Rather than
obliterating the carefully considered criteria provided by Congress in this area,
other courts have held that this Section 1182(f) “provides a safeguard against the
danger posed by any particular case or class of cases that is not covered by one of
the categories in section 1182(a).” Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2
(D.C. Cir. 1986) (concluding that authority under one subsection cannot “swallow”
the limitations imposed by Congress on inadmissibility under other parts of Section
1182) (emphasis added), aff’d mem., 484 U.S. 1 (1987). Applying the same
principle of construction, Allende v. Shultz held that subsections of 8 U.S.C.
§ 1182(a) could not be rendered superfluous by interpretation of others. 845 F.2d
1111, 1118 (1st Cir. 1988).
Both the Original Order and the Revised Order expressly discriminate
against applicants for entry based on nationality and place of residence and are
premised on a construction of Section 1182(f) that would obviate limitations
Congress has imposed on the executive’s inadmissibility determinations under
Section 1182(a)—precisely what Congress and President Johnson specified by
statute the Executive Branch could not do. Thus, the President lacked statutory
authority or discretion to issue the Orders. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring in the judgment)
(observing that the President’s power is at “its lowest ebb” when it is

21

“incompatible with the expressed . . . will of Congress”). Because the President
lacked the authority to discriminate in immigration matters on the basis of race or
national origin, the Court should enjoin enforcement of any such provisions of the
Revised Order.
Defendants’ insistence that honoring these carefully considered statutory
limits on presidential discretion and enjoining enforcement of the Revised Order
would leave the country unduly vulnerable to a terrorist attack, is unavailing. Such
an argument would run counter to the lessons of, and the government’s apologies
for, the Japanese American incarceration during World War II.11 The proffered
evidence of danger in the Revised Order itself is perfunctory, and was almost
entirely absent from the Original Order, which is inexplicable and unacceptable
given the gravity of departing from the expressed will of Congress to not
discriminate against certain applicants for entry or immigration based upon their
national origin. Congress relegated this kind of discrimination into the past by the
Immigration and Nationality Act of 1965, which aligned the country’s immigration
laws with notions of equality etched into the nation’s conscience in the Civil Rights

11

See Brief of the Korematsu Center, supra; see also U.S. Dep’t of Justice,
Confession of Error: The Solicitor General’s Mistakes During the JapaneseAmerican Internment Cases (May 20, 2011), available at
https://www.justice.gov/opa/blog/confession-error-solicitor-generalsmistakesduring-japanese-american-internment-cases; Civil Liberties Act of 1988,
Pub. L. No. 100-383, 102 Stat. 904.
22

Era that remain with us today. Crucially, the President retains the ability to act
within the authority delegated by Congress to develop specific time-bound
restrictions based on specific relevant facts and non-prohibited categories as
permitted under law. See supra Part III (addressing limitations on executive
authority).
Because the statutory provisions at issue facially prohibit enforcement of the
Revised Order’s discrimination against individuals in immigration and entry
proceedings on the basis of nationality, place of birth, or place of residence, the
Court can avoid reaching any such Constitutional question. See, e.g., Zadvydas,
533 U.S. at 689 (courts should “ascertain whether a construction of the statute is
fairly possible by which [a constitutional] question may be avoided.”).
B.

The Executive’s Discretion over Admission of Aliens Is Subject to
Review if Based on Bad Faith.

Even absent a directly contrary statute, courts have restricted Executive
discretion related to alien admission in circumstances where there was a “bad
faith” basis for a discriminatory admission policy. See, e.g., Din, 135 S. Ct.
at 2128 (suggesting that a showing of “bad faith” permits a “look behind” the
proffered basis for the exclusion determination); American Academy of Religion v.
Napolitano, 573 F.3d 115 (2d Cir. 2009) (holding that a well-supported allegation
of bad faith could render an immigration decision not bona fide). As described by

23

the Ninth Circuit, the Supreme Court recognized the limitations on executive
discretion: “the federal power over aliens was found not to be ‘so plenary that any
agent of the National Government may arbitrarily subject all resident aliens to
different substantive rules from those applied to citizens.’” Mow Sun Wong v.
Campbell, 626 F.2d 739, 744 (9th Cir. 1980) (quoting Hampton v. Mow Sun Wong,
426 U.S. 88, 101 (1976)).
A prima facie showing of “bad faith” is clear from the unambiguous
discriminatory language of the Revised Order. The Revised Order identifies and
restricts admission on the basis of national identity in violation of statutory
requirements. The demonstration of a discriminatory purpose permits the Court to
“look behind” the basis for exclusion, including the statements of then-candidate
Trump’s calling for a “a total and complete shutdown of Muslims entering the
United States until our country’s representatives can figure out what is going on,”
Donald J. Trump, Statement on Preventing Muslim Immigration (Dec. 7, 2015),
available at https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration, statements by his campaign staff
and advisors, and the actions and statements of President Trump and other
members of the Administration, see Aziz v. Trump, No. 117CV116LMBTCB, 2017
WL 580855, at *7–9 (E.D. Va. Feb. 13, 2017) (detailing public statements by thencandidate Trump as well as his advisors describing the Original Order as a

24

“Muslim ban”). These statements provide crucial context for identifying the
animus and discriminatory purpose behind the Revised Order, and afford ample
basis for this Court to conclude that its exercise of Executive discretion is contrary
to the requirements of law and/or the Constitution.
CONCLUSION
The United States restricted entry, immigration, and naturalization by
innumerable people from many Asian nations for decades prior to 1965—an aspect
of American history looked back on with shame. The statutes imposing these
restrictions based upon national origin grew out of and gave credence to ugly
stereotypes about nationals from the affected countries. Many Asian Pacific
Americans are here today because Congress prohibited such discrimination in
1965. It did so in the Civil Rights Era, when the harm and injustice of
government-sanctioned discrimination on the basis of “race, sex, nationality, place
of birth, [and] place of residence” received wider recognition and could no longer
be countenanced.
The Revised Order seeks to side-step these statutory prohibitions on
nationality based discrimination as well as fundamental constitutional due process
and equal protection concerns, to discriminate against nationals of six Muslimmajority countries, consistent with then-candidate Trump’s proposal to
provisionally bar admission of all Muslims into the United States. Defendants ask

25

this Court to uphold the Revised Order based upon thinly sourced, broad, and ugly
stereotypes of nationals from the affected countries. This Court should prevent the
President from exercising such unilateral authority in contravention of a core civil
rights statute, lest it presage a return to the era of invidious discrimination that
Congress sought to put behind us over fifty years ago.
DATED: Honolulu, Hawai‘i, March 12, 2017.
Respectfully submitted,

PAMELA W. BUNN
JOHN RHEE
JAMES W. KIM*
TINA R. MATSUOKA*
MEREDITH S.H. HIGASHI*
NAVDEEP SINGH*
RACHANA PATHAK*
Attorneys for Amicus Curiae
*Pro hac vice application pending

26

CERTIFICATE OF SERVICE
I hereby certify that, on the dates and by the methods of service noted below,
a true and correct copy of the foregoing was served on the following at their last
known addresses:
Served Electronically through CM/ECF on

:

Florence T. Nakakuni
Edric Ming-Kai Ching

[e-mail]
[e-mail]

Michelle R. Bennett
Brad P. Rosenberg
Daniel Schwei

[e-mail]
[e-mail]
[e-mail]

Neal Katyal
Colleen Roh Sinzdak
Mitchell Reich
Elizabeth Hagerty
Sara Solow
Alexander Bowerman
Thomas Schmidt

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Douglas S.G. Chin
Clyde J. Wadsworth
Deirdre Marie-Iha
Donna H. Kalama
Kimberly T. Guidry
Robert T. Nakatsuji

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

And all other counsel of record
DATED: Honolulu, Hawai‘i,
Respectfully submitted,
/s/ Pamela W. Bunn
PAMELA W. BUNN
JOHN RHEE
JAMES W. KIM*
TINA R. MATSUOKA*
MEREDITH S.H. HIGASHI*
NAVDEEP SINGH*
RACHANA PATHAK*
Attorneys for amicus curiae
* Pro hac vice application pending
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