State of Hawaii v. Trump

Filing 194

RESPONSE in Support re 65 MOTION for Temporary Restraining Order filed by Massachusetts Technology Leadership Council, Inc.. (Attachments: # 1 Certificate of Service)(Tobin, Brett)

GOODSILL ANDERSON QUINN & STIFEL
A Limited Liability Law Partnership LLP
BRETT R. TOBIN
9490-0
[e-mail]
First Hawaiian Center
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Telephone: [phone]
Facsimile: [phone]
FOLEY HOAG LLP
MICHAEL B. KEATING (Pro Hac Vice)
[e-mail]
KRISTYN DeFILIPP (Pro Hac Vice)
[e-mail]
CHRISTOPHER E. HART (Pro Hac Vice)
[e-mail]
DANIEL L. McFADDEN (Pro Hac Vice)
[e-mail]
155 Seaport Blvd.
Boston, MA 02210-2600
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amicus Curiae
MASSACHUSETTS TECHNOLOGY
LEADERSHIP COUNCIL, INC.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI’I and ISMAIL
ELSHIKH,
Plaintiffs,
vs.

6281391.1

CV. NO. 1:17-cv-00050 DKW-KJM
BRIEF OF MASSACHUSETTS
TECHNOLOGY LEADERSHIP
COUNCIL, INC. AS AMICUS
CURIAE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR

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,

TEMPORARY RESTRAINING
ORDER [65]; CERTIFICATE OF
SERVICE

Defendants.

BRIEF OF MASSACHUSETTS TECHNOLOGY LEADERSHIP COUNCIL,
INC. AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’
MOTION FOR TEMPORARY RESTRAINING ORDER [65]

ii

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................ iv 
INTEREST OF AMICUS CURIAE ........................................................................1 
ARGUMENT ............................................................................................................1 
I. 

THE NEW TRAVEL BAN IS MERELY A CONTINUATION
OF THE PRESIDENT’S UNCONSTITUTIONAL ANTIMUSLIM POLICIES. ......................................................................... 3 
A. 
B. 

The Federal Courts Ordered The President To Cease
Implementing The Ban. ............................................................ 4 

C. 
II. 

The President Banned Muslims. .............................................. 3 

The Revised Travel Ban Is A Continuation Of The
Original And Is Equally, If Not More, Flawed. ..................... 5 

THE REVISED TRAVEL BAN IS NOT ONLY ILLEGAL,
BUT IT WILL OPERATE AGAINST THE PUBLIC
INTEREST, INCLUDING AGAINST THE INTERESTS OF
THE TECHNOLOGY SECTOR. ...................................................... 8 
A. 

The Domestic Technology Industry Benefits From
Immigration. .............................................................................. 8 

B. 

Unless It Is Enjoined, The Revised Travel Ban Will
Harm The Technology Industry. ........................................... 13 

C. 

Unless It Is Enjoined, the Revised Travel Ban Will
Undermine the Competitive Strength of the Domestic
Technology Industry and Will Chill the Culture of
Innovation. ............................................................................... 16 

CONCLUSION.......................................................................................................18 

iii

TABLE OF AUTHORITIES
Page(s)
Cases
Aziz v. Trump, No. 17-116, 2017 U.S. Dist. LEXIS 20889 (E.D. Va.
Feb. 13, 2017) ..............................................................................................passim
Epperson v. Arkansas, 393 U.S. 97 (1968) .............................................................. 17
Knox v SEIU, 132 S. Ct. 2277 (2012) ........................................................................ 7
United States v. Ballard, 322 U.S. 78, 86 (1944) .................................................... 17
Washington v. Trump, No. 17-35105, 2017 U.S. App. LEXIS 2369
(9th Cir. Feb. 9, 2017)..................................................................................passim
Orders
82 Fed. Reg. 8,977 (Jan. 27, 2017) .....................................................................1,3, 4
82 Fed. Reg. 13,209 (Mar. 6, 2017) ........................................................................... 1
Other Authorities
Adams Nager and Robert D. Atkinson, The Case for Improving U.S.
Computer Science Education, Information Technology &
Innovation Foundation, May 2016, at 3, available at
http://www2.itif.org/2016-computer-science-education.pdf,
accessed March 11, 2017 ...................................................................................... 9
Adam Vaccaro, Boston Business Leaders Oppose Trump Immigration
Order, The Boston Globe (Jan. 29, 2017), available at
https://www.bostonglobe.com/business/2017/01/29/chief-sayscompany-will-stand-with-employees-from-bannedcountries/5v00oFyvZZpGPd5CxPDjfN/story.html ............................................ 15
Association of American Medical Colleges, The Complexities of
Physician Supply and Demand: Projections from 2014 to 2015, at
27, 36 (2016), available at
https://www.aamc.org/download/458082/data/2016_complexities_
of_supply_and_demand_projections.pdf ............................................................ 12
iv

Casey Ross & Max Blau, US Health Care Relies Heavily on Foreign
Workers. Trump’s Immigration Ban Is Raising Alarms., STAT
(Jan. 30, 2017), available at
https://www.statnews.com/2017/01/30/trump-immigration-banhealth-workers/ ................................................................................................... 11
David Dyssegaard Kallick, Bringing Vitality to Main Street: How
Immigrant Small Businesses Help Local Economies Grow (2015),
interactive data display available at http://www.ascoa.org/articles/interactive-impact-immigrants-main-streetbusiness-and-population-us-metro-areas ............................................................ 11
Fiscal Policy Institute, Immigrant Small Business Owners: A
Significant and Growing Part of the Economy 24 & Fig. 24 (2012),
available at http://www.fiscalpolicy.org/immigrant-small-businessowners-FPI-20120614.pdf .................................................................................. 11
Form 10-Q for Quarter Ended Dec. 31, 2016, Microsoft Corp.,
available at https://www.microsoft.com/en-us/Investor/secfilings.aspx .......................................................................................................... 14
How Would Curbs on Immigration Affect U.S. Tech Firms?,
KNOWLEDGE @WHARTON (Feb. 7, 2017), available at
http://knowledge.wharton.upenn.edu/article/immigration-banimpact-u-s-tech-firms/. ....................................................................................... 14
Immigrant CEOs of the Fortune 500, Boardroom Insiders (March
2016), available at http://info.boardroominsiders.com/get-ourfortune-500-immigrant-ceo-list-for-free ............................................................. 10
January 27, 2016 Letter of Edward J. Ramotowski, Deputy Ass’t of
State, Bureau of Consular Affairs, Department of State ...................................... 4
Kaveh Waddell, How Trump’s Immigration Rules Will Hurt the U.S.
Tech Sector, THE ATLANTIC (Feb. 1, 2017), available at
https://www.theatlantic.com/technology/archive/2017/02/howtrumps-immigration-rules-will-hurt-the-us-tech-sector/515202 ..................13, 14
Kristen McCabe, Foreign-Born Health Care Workers in the United
States, MIGRATION POLICY INSTITUTE, June 27, 2012,
http://www.migrationpolicy.org/article/foreign-born-health-careworkers-united-states# ........................................................................................ 11
v

Massachusetts Department of Higher Education, The Degree Gap 14
(June 2016), available at
http://www.mass.edu/visionproject/_documents/2016%20The%20
Degree%20Gap%20%20Vision%20Project%20Annual%20Report.pdf. ............................................. 9
MassTLC, The Connected Commonwealth: How the Massachusetts
Tech Ecosystem is Creating New Growth Opportunities, available
at http://www.masstlc.org/page/2016StateofTech ............................................... 8
The Partnership for a New American Economy, The Contributions of
New Americans in Massachusetts 14 (2016), available at
http://www.renewoureconomy.org/wpcontent/uploads/2016/10/nae-ma-report.pdf.................................................10, 12
The Partnership for a New American Economy, Open For Business:
How Immigrants Are Driving Small Business Creation In The
United States 33 (2012), available at
http://www.renewoureconomy.org/sites/all/themes/pnae/openforbu
siness.pdf ............................................................................................................. 11
The Partnership for a New American Economy, Patent Pending: How
Immigrants Are Reinventing the American Economy 1 (2012),
available at http://www.renewoureconomy.org/wpcontent/uploads/2013/07/patent-pending.pdf ...............................................12, 13
The Partnership for a New American Economy, Reason for Reform:
Entrepreneurship 2 (2016) available at
http://www.renewoureconomy.org/wpcontent/uploads/2016/10/NAE_Entrepreneurship.pdf ....................................... 10
Seema Yasmin, Trump Immigration Ban Can Worsen U.S. Doctor
Shortage, Hurt Hospitals, Scientific American (Feb. 1, 2017),
available at https://www.scientificamerican.com/article/trumpimmigration-ban-can-worsen-u-s-doctor-shortage-hurt-hospitals ..................... 12
Stuart Anderson, Immigrants and Billion Dollar Startups, National
Foundation for American Policy (March 2016), at 1 & app’x 5,
available at http://nfap.com/wpcontent/uploads/2016/03/Immigrants-and-Billion-DollarStartups.NFAP-Policy-Brief.March-2016.pdf ...................................................... 9
vi

Trump Advisor Says New Travel Ban Will Have ‘Same Basic Policy
Outcome,’ FoxNews.com, Feb. 21, 2017, available at
http://www.foxnews.com/politics/2017/02/21/trump-adviser-saysnew-travel-ban-will-have-same-basic-policy-outcome.html............................ 2, 6
Why These Business School Professors Oppose Trump’s Executive
Order On Immigration, Harvard Business School: Working
Knowledge, Jan. 31, 2017, available at
http://hbswk.hbs.edu/item/why-these-business-school-professorsoppose-trump-s-executive-order-on-immigration ................................................ 9
Zeninjor Enwemeka, Local Tech Companies Say Trump’s
Immigration Order Is Bad For Business, WBUR (Feb. 7, 2017),
available at http://www.wbur.org/bostonomix/2017/02/07/bostonbusiness-travel-ban ............................................................................................. 15

vii

INTEREST OF AMICUS CURIAE
Amicus Curiae is the Massachusetts Technology Leadership Council, Inc.
(“MassTLC”), a not-for-profit association of companies that collectively employ
more than 170,000 people in the Massachusetts technology industry. MassTLC
represents a vibrant and growing community of innovators in fields including
software, computers, robotics, and security products. MassTLC therefore closely
follows issues—including immigration policy—that may affect the ability of its
members to build value, attract talent, and compete in the diverse global
marketplace.
ARGUMENT
MassTLC writes in support of the Plaintiffs’ motion for an order temporarily
restraining the execution of President Donald Trump’s Executive Order dated
March 6, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into
the United States” (the “Revised Travel Ban”),1 on a nation-wide basis. As the
Court is aware, the Revised Travel Ban was issued to voluntarily narrow an
identically titled Executive Order issued January 27, 2017 (the “Original Travel
Ban”).2

1

82 Fed. Reg. 13,209 (Mar. 6, 2017).

2

82 Fed. Reg. 8,977 (Jan. 27, 2017).

6281391.1

The Revised Travel Ban is arbitrary, illegal, and does not serve the public
interest. This is fundamentally the same discriminatory “Muslim Ban” that has
been repeatedly enjoined over the last two months.3 Cosmetic changes—such as
the post hoc addition of purported security justifications—do not alter the fact that
this policy still proceeds from the same irrational and unconstitutional religious
animus. Indeed, the President’s own Senior Policy Advisor admits that it is
intended to achieve the “same basic policy outcome” as its patently illegal
predecessor.4
The public interest demands an immigration system that does not
discriminate against any religion, and that is fair, orderly, and predictable. In
particular, technology companies in Massachusetts require such a system to recruit
innovators from around the world to build businesses here at home, and to sell their
products back out into the global marketplace. President Trump’s attempt to ban
the entry of entire nationalities—even when the person seeking entry clearly poses

3

See, e.g., Washington v. Trump, No. 17-35105, 2017 U.S. App. LEXIS 2369, at
*3-7 (9th Cir. Feb. 9, 2017); Aziz v. Trump, No. 17-116, 2017 U.S. Dist. LEXIS
20889, at *9-13, 27 (E.D. Va. Feb. 13, 2017).
4

See Trump Advisor Says New Travel Ban Will Have ‘Same Basic Policy
Outcome,’ FoxNews.com, Feb. 21, 2017, available at
http://www.foxnews.com/politics/2017/02/21/trump-adviser-says-new-travel-banwill-have-same-basic-policy-outcome.html.
2

no risk—is antithetical to the public interest and undermines America’s innovation
economy and its fundamental values.
I.

THE NEW TRAVEL BAN IS MERELY A CONTINUATION OF THE
PRESIDENT’S UNCONSTITUTIONAL ANTI-MUSLIM POLICIES.
A. The President Banned Muslims.
During his recent election campaign, President Trump repeatedly promised

to ban Muslims from entering the United States.5 As one court has explained,
“[t]he ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and
the press release calling for it was still available on his website as of [Feb. 13,
2017].”6
Within days of taking office, President Trump issued the Original Travel
Ban. Section 3(c) of that order immediately prohibited all people from seven
predominantly Muslim countries from entering the United States, even including
returning permanent residents and visa-holders residing in the United States.7 The
President ordered that this exclusion continue for 90 days, during which time
federal agencies would purportedly review their immigration security procedures.8

5

See Aziz, 2017 U.S. Dist. LEXIS 20889, at *9-13.

6

See id.

7

See Washington, 2017 U.S. App. LEXIS 2369, at *3-7. Notably, the order
included a safety valve to permit “religious minorities”
8

82 Fed. Reg. 8977, 8977-78.
3

To implement this order, the Department of State “provisionally revoke[d] all valid
nonimmigrant and immigrant visas of nationals” of those seven countries without
any due process or advance notice.9
Notably, the Original Travel Ban contained provisions to add additional
countries to the “banned” list, and also to extend the ban indefinitely beyond the
initial 90-day period.10 Thus, with the stroke a pen, President Trump suddenly
excluded a vast number of Muslims from the United States, stripped legal status
from many already residing here, and created well-founded fear that more
nationalities would find themselves banned without warning.
B. The Federal Courts Ordered The President To Cease Implementing
The Ban.
The Original Travel Ban was rapidly enjoined by numerous federal courts.
Most broadly, Judge James Robart of the U.S. District Court for the Western
District of Washington issued an order that the federal government was
“ENJOINED and RESTRAINED from . . . [e]nforcing Section 3(c)” of the

9

See January 27, 2016 Letter of Edward J. Ramotowski, Deputy Ass’t of State,
Bureau of Consular Affairs, Department of State. This letter made a small number
of exceptions for military and diplomatic visas, or case-by-case determinations “in
the national interest.”
10

82 Fed. Reg. 8977, 8978.
4

Original Travel Ban on a nationwide basis.11 The federal government appealed
this order, but ultimately dismissed the appeal after the 9th Circuit construed the
order as a preliminary injunction and refused to stay its operation.12 Thus, the
federal government was (and is) specifically enjoined from denying any person
entry into the United States, or other immigration benefits, simply because the
person is a national of one of the seven “banned” countries.
Notably, at least one court enjoined the Original Travel Ban based on the
strong likelihood that it would be proved to be an exercise in religious
discrimination. Judge Brinkema of the U.S. District Court for the Eastern District
of Virginia concluded, based in large part on the President’s own statements, that
the Commonwealth of Virginia had established such a strong likelihood of success
on its Establishment Clause claim that the Original Travel Ban should be enjoined
on that basis alone.13
C. The Revised Travel Ban Is A Continuation Of The Original And Is
Equally, If Not More, Flawed.

11

Washington, No. 17-141, 2017 U.S. Dist. LEXIS 16012, at *7-8 (W.D. Wash.
Feb. 3, 2017).
12

See Washington, 2017 U.S. App. LEXIS 2369, at *34 (stay of preliminary
injunction denied); Order, Washington, No. 17-35105 (9th Cir. Mar. 8, 2017)
(granting federal government’s motion to voluntarily dismiss appeal of preliminary
injunction, including payment of State of Washington’s costs).
13

Aziz, 2017 U.S. Dist. LEXIS 20889, at *28 n.11.
5

On March 6, 2017, President Trump signed the Revised Travel Ban, which
purports to revoke and replace his earlier order. Unchanged, however, is the ban’s
basic function: to prohibit people from predominantly Muslim countries from
entering the United States based solely on their national origin.14
The Revised Travel Ban will last at least 90 days (beginning March 16th),
again purportedly to permit a review of immigration security procedures, again
subject to indefinite extension, and again subject to the addition of new “banned”
countries. This 90-day timeline appears to make no sense, however, given that this
same 90-day review was ordered on January 25, 2017 and should be nearing
completion by mid-March. In fact, MassTLC is not aware of any evidence that
such a review was ever even begun, providing yet more reason to believe that the
entire notion was nothing more than pretext for discrimination.
To be sure, while the Revised Travel Ban is somewhat narrower, it
nevertheless still achieves (in the words of President Trump’s own senior advisor)
the “same basic policy outcome.”15 For example, although permanent residents
and aliens already issued visas are exempted from the revised order, the residents
14

This is prohibited discrimination even if the ban does not restrict travel from
every predominantly Muslim country. See id. at *26-27 (“The major premise of
that argument—that one can only demonstrate animus toward a group of people by
targeting all of them at once—is flawed.”).
15

See Trump Advisor Says New Travel Ban Will Have ‘Same Basic Policy
Outcome,’ n.4, supra.
6

of six Muslim-majority countries still cannot obtain new visas. Inevitably, travel
from those countries will be incrementally extinguished as existing visas expire.
Further, although the Revised Travel Ban now contains purported security
justifications for restricting travel from the six remaining countries, it is telling that
these justifications were not proffered until after the Original Travel Ban had been
enjoined.16 Asserted now—in the teeth of numerous adverse rulings—these post
hoc rationalizations are entitled to little weight.17
Lastly, it should not be forgotten that denying new visas to people based
solely on their origin from one of the banned countries is exactly the conduct that
is prohibited by Judge Robart’s preliminary injunction. That injunction has never
been revoked or modified. Nor can the government evade it by purporting to
revoke and narrow the Original Travel Ban on a purely voluntary basis.18 Yet it
appears that the Trump Administration has every intention of executing its ban in
direct violation of Judge Robart’s order.

16

Washington, 2017 U.S. App. LEXIS 2369, at *32 & n.8.

17

Aziz, 2017 U.S. Dist. LEXIS 20889, at *24 n.10 (citing Peacock v. Duval, 694
F.2d 644, 646 (9th Cir. 1982)).
18

See, e.g., Knox v SEIU, 132 S. Ct. 2277, 2287 (2012) (“The voluntary cessation
of challenged conduct does not ordinarily render a case moot because a dismissal
for mootness would permit a resumption of the challenged conduct as soon as the
case is dismissed.”).
7

II.

THE REVISED TRAVEL BAN IS NOT ONLY ILLEGAL, BUT IT
WILL OPERATE AGAINST THE PUBLIC INTEREST, INCLUDING
AGAINST THE INTERESTS OF THE TECHNOLOGY SECTOR.
Although the Revised Travel Ban is contrary to the public interest in many

ways, MassTLC writes to explain one particular facet of that harm: the ban’s
profoundly disruptive effect on the technology sector, including in Massachusetts.
A. The Domestic Technology Industry Benefits From Immigration.
The technology industry is a critical driver of the Massachusetts economy.
Nearly 400,000 people in Massachusetts work in jobs that are either in the
technology sector, or are in technology-related occupations in other sectors—
roughly 13% of the state’s total workforce.19 This industry is a global enterprise,
fueled in large part by immigration and international travel. According to one
recent study, as of January 1, 2016, “[i]mmigrants have started more than half (44
of 87) of America’s startup companies valued at $1 billion dollars or more and are
key members of management or product development teams in over 70 percent (62
of 87) of these companies.”20 More than half of Silicon Valley’s corporate
founders are immigrants.21

19

MassTLC, The Connected Commonwealth: How the Massachusetts Tech
Ecosystem is Creating New Growth Opportunities, at 14, available at
http://www.masstlc.org/page/2016StateofTech.
20

Stuart Anderson, Immigrants and Billion Dollar Startups, National Foundation
for American Policy (March 2016), at 1 & app’x 5, available at
8

The integral role that immigrants play in the technology industry does not
arise because “immigrants steal jobs” (as many nativist demagogues have
claimed), but rather because the technology industry is growing too rapidly to be
staffed through domestic labor alone. By 2020, for example, projections indicate
that 1.4 million computer specialist positions will be open in the United States, but
domestic universities will only produce enough graduates to fill 29% of those
jobs.22 In Massachusetts today, there are seventeen technology jobs for every
person who graduates with a degree in computer science or information
technology.23 Immigrants are responsible for substantial economic growth. One
study projects that, if half of Massachusetts’ 3,608 advanced level graduates in
science, technology, engineering, and mathematics (STEM) related fields, studying

http://nfap.com/wp-content/uploads/2016/03/Immigrants-and-Billion-DollarStartups.NFAP-Policy-Brief.March-2016.pdf.
21

Why These Business School Professors Oppose Trump’s Executive Order On
Immigration, Harvard Business School: Working Knowledge, Jan. 31, 2017,
available at http://hbswk.hbs.edu/item/why-these-business-school-professorsoppose-trump-s-executive-order-on-immigration.
22

Adams Nager and Robert D. Atkinson, The Case for Improving U.S. Computer
Science Education, Information Technology & Innovation Foundation, May 2016,
at 3, available at http://www2.itif.org/2016-computer-science-education.pdf,
accessed March 11, 2017, p. 3.
23

Massachusetts Department of Higher Education, The Degree Gap 14 (June
2016), available at
http://www.mass.edu/visionproject/_documents/2016%20The%20Degree%20Gap
%20-%20Vision%20Project%20Annual%20Report.pdf.
9

on temporary visas, remained in Massachusetts upon graduation, then 4,726 jobs
would be created for U.S.-born workers by 2021.24
American companies that are household names—Microsoft, McDonald’s,
U.S. Steel—are led by foreign-born CEOs.25 As of 2016, over 10% of Fortune 500
CEOs were born outside of the U.S.; the same was true for 14% of Fortune 100
CEOs.26 In 2016, over 40% of Fortune 500 firms were founded either by an
immigrant or the child of immigrants. 27
The same holds true in Massachusetts. More than half of the Massachusettsbased Fortune 500 companies were founded by immigrants, or by children of
immigrants.28 Their impact on the Massachusetts economy has been significant,
generating over $130 billion in annual revenue, and employing nearly half a

24

The Partnership for a New American Economy, The Contributions of New
Americans in Massachusetts 14 (2016), available at
http://www.renewoureconomy.org/wp-content/uploads/2016/10/nae-ma-report.pdf.

25

Immigrant CEOs of the Fortune 500, Boardroom Insiders (March 2016),
available at http://info.boardroominsiders.com/get-our-fortune-500-immigrantceo-list-for-free
26

Id.

27

The Partnership for a New American Economy, Reason for Reform:
Entrepreneurship 2 (2016) available at http://www.renewoureconomy.org/wpcontent/uploads/2016/10/NAE_Entrepreneurship.pdf.
28

The Contributions of New Americans in Massachusetts, n.24, supra, at 3.
10

million people around the world.29 At the beginning of this decade, over 17
percent of all business owners in Massachusetts were foreign born.30 In 2013, the
same was true of nearly 19 percent of business owners in the greater Boston area.31
From 2006 to 2010, Massachusetts businesses owned by new immigrants had a
total net business income of $2.8 billion.32
Medicine, in particular, has benefitted greatly from immigrants. More than
25 percent of physicians practicing in the United States are foreign born.33
Importantly, foreign-born physicians are disproportionately represented in rural
clinics and public safety-net hospitals treating isolated and vulnerable

29

Id.

30

Fiscal Policy Institute, Immigrant Small Business Owners: A Significant and
Growing Part of the Economy 24 & Fig. 24 (2012), available at
http://www.fiscalpolicy.org/immigrant-small-business-owners-FPI-20120614.pdf.
31

David Dyssegaard Kallick, Bringing Vitality to Main Street: How Immigrant
Small Businesses Help Local Economies Grow (2015), interactive data display
available at http://www.as-coa.org/articles/interactive-impact-immigrants-mainstreet-business-and-population-us-metro-areas.
32

The Partnership for a New American Economy, Open For Business: How
Immigrants Are Driving Small Business Creation In The United States 33 (2012),
available at
http://www.renewoureconomy.org/sites/all/themes/pnae/openforbusiness.pdf.
33

Kristen McCabe, Foreign-Born Health Care Workers in the United States,
MIGRATION POLICY INSTITUTE, June 27, 2012,
http://www.migrationpolicy.org/article/foreign-born-health-care-workers-unitedstates#4.
11

populations.34 The simple reason for this is that the United States does not produce
enough physicians to keep up with demand. According to a report published by
the Association of American Medical Colleges (AAMC) in 2016, a current deficit
of 11,000 physicians is expected to grow as the population grows and ages.35 The
AAMC estimates that the U.S. will face a shortage of up to 94,700 doctors by
2025.36 Almost a third of the shortage will be primary care physicians.37 More
than 8,400 doctors working in the U.S. are from the two countries listed in the
Revised Travel Ban: Iran and Syria.38 Specifically in Massachusetts, in 2016
almost 1 in 4 physicians graduated from a medical school outside of the United
States (suggesting non-U.S. origin).39

34

Casey Ross & Max Blau, US Health Care Relies Heavily on Foreign Workers.
Trump’s Immigration Ban Is Raising Alarms., STAT (Jan. 30, 2017), available at
https://www.statnews.com/2017/01/30/trump-immigration-ban-health-workers/.
35

Association of American Medical Colleges, The Complexities of Physician
Supply and Demand: Projections from 2014 to 2015, at 27, 36 (2016), available at
https://www.aamc.org/download/458082/data/2016_complexities_of_supply_and_
demand_projections.pdf.
36

Id. at 27.

37

Id.

38

Seema Yasmin, Trump Immigration Ban Can Worsen U.S. Doctor Shortage,
Hurt Hospitals, Scientific American (Feb. 1, 2017), available at
https://www.scientificamerican.com/article/trump-immigration-ban-can-worsen-us-doctor-shortage-hurt-hospitals/.
39

The Contributions of New Americans in Massachusetts, n.24, supra, at 15.
12

So too do immigrants drive the development of inventions and other useful
arts. For example, in 2011, 76% of patents awarded to the Top 10 patentproducing U.S. universities had an inventor that was foreign-born.40 In recent
years, foreign nationals contributed to more than three quarters of patents in the
fields of information technology, molecular and microbiology, and
pharmaceuticals.41
Notably, many of the immigrants who fuel the technology industry come
from the countries banned by President Trump’s orders. For example, IranianAmericans either founded or lead mainstays of the technology sector like Twitter,
Dropbox, Oracle, and eBay.42 Similarly, several of the top venture capitalists who
fund new technology companies were born in Tehran.43
B. Unless It Is Enjoined, The Revised Travel Ban Will Harm The
Technology Industry.

40

The Partnership for a New American Economy, Patent Pending: How
Immigrants Are Reinventing the American Economy 1 (2012), available at
http://www.renewoureconomy.org/wp-content/uploads/2013/07/patentpending.pdf.
41

Id. at 11.

42

Kaveh Waddell, How Trump’s Immigration Rules Will Hurt the U.S. Tech
Sector, THE ATLANTIC (Feb. 1, 2017), available at
https://www.theatlantic.com/technology/archive/2017/02/how-trumpsimmigration-rules-will-hurt-the-us-tech-sector/515202/.
43

Id.
13

Implementation of irrational and discriminatory immigration policies,
including the Revised Travel Ban, would severely harm the technology industry in
the U.S. generally, and Massachusetts specifically. The impact is expected to
destabilize the workforce and reduce the competitiveness of U.S. technology firms.
For example, Microsoft’s public securities filings explain that “[c]hanges to U.S.
immigration policies that restrain the flow of technical and professional talent may
inhibit our ability to adequately staff our research and development efforts.”44 In
addition to stifling recruiting from the “banned” countries, the Revised Travel Ban
could accelerate the rise of technology hubs abroad, making such locales as
Vancouver, London, and Singapore more “attractive alternatives to existing hubs”
of technology in the United States,45 and force companies based abroad to put off
opening offices in the United States.46 It will also likely result in the relocation of
foreign born employees from the United States to other counties where they can
reside without fear of a sudden revocation of their rights to access their families
and homes.

44

Form 10-Q for Quarter Ended Dec. 31, 2016, Microsoft Corp., at 58, available at
https://www.microsoft.com/en-us/Investor/sec-filings.aspx.

45

How Trump’s Immigration Rules Will Hurt the U.S. Tech Sector, n.42, supra.

46

How Would Curbs on Immigration Affect U.S. Tech Firms?, KNOWLEDGE
@WHARTON (Feb. 7, 2017), available at
http://knowledge.wharton.upenn.edu/article/immigration-ban-impact-u-s-techfirms/.
14

The Massachusetts technology sector expects to feel this impact acutely.
As reported in the press, numerous Boston-based businesses have expressed grave
concern regarding the Administration’s travel ban and its potential expansion. As
Jeff Bussgang, a general partner at the venture capital firm Flybridge and professor
at Harvard Business School stated, the travel ban is “the innovation economy’s
worst nightmare.”47 Paul English, founder of the travel booking site Kayak and
startup Lola, expressed concern about a Mexican national hired to develop an app
who was worried about traveling out of the country to visit his family.48 Leaders
of Massachusetts-headquartered technology companies, from large to small—
including GE, TripAdvisor, Carbonite, Brightcove, and Fuze—have expressed
concern over the direct impact that implementation of the travel ban had on their
businesses.49 This anecdotal evidence is strongly supported by the empirical data
noted above: a high percentage of founders, managers, and employees of

47

Adam Vaccaro, Boston Business Leaders Oppose Trump Immigration Order,
The Boston Globe (Jan. 29, 2017), available at
https://www.bostonglobe.com/business/2017/01/29/chief-says-company-willstand-with-employees-from-bannedcountries/5v00oFyvZZpGPd5CxPDjfN/story.html.
48

Id.

49

Id.; Zeninjor Enwemeka, Local Tech Companies Say Trump’s Immigration
Order Is Bad For Business, WBUR (Feb. 7, 2017), available at
http://www.wbur.org/bostonomix/2017/02/07/boston-business-travel-ban.
15

Massachusetts technology companies are immigrants and potentially impacted by
the Revised Travel Ban, either directly or indirectly.
It is thus clearly in the public interest—including in the interests of the
Massachusetts technology industry—for the Court to restrain the operation of the
Revised Travel Ban. The United States deserves fair, rational, and predictable
rules to govern immigration and international travel. Such a system permits
individuals and companies to reliably arrange employment and commercial
relationships, without fear that those relationships will be abruptly disrupted by
irrational or discriminatory policies.
C. Unless It Is Enjoined, the Revised Travel Ban Will Undermine the
Competitive Strength of the Domestic Technology Industry and Will
Chill the Culture of Innovation.
The Revised Travel Ban is also contrary to the public interest because it
substantially undermines the ability of the Massachusetts technology industry to
compete in the international marketplace. It discourages travel to the U.S. by
potential customers and investors, either because they are directly impacted by the
ban, or because they are worried that the ban would be unexpectedly expanded to
exclude additional nationalities. It may force companies to move jobs outside of
the U.S., locating businesses where employees live rather than enticing them to
come to the U.S. Similarly, the Revised Travel Ban discourages talented foreign
students from attending local educational institutions, from which the technology

16

industry hires many engineers and scientists to drive innovation in the United
States. Foreign-born students already in the U.S. will be less likely to remain, as
they may be unable to receive or renew a visa, or may be fearful of that possibility.
The Revised Travel Ban will inevitably reduce the relative strength of domestic
industry in global markets, which does nothing to make the United States more
safe, prosperous, or secure.
The technology industry, in Massachusetts as elsewhere, thrives on a culture
of diversity, inclusivity, and equal opportunity. The Revised Travel Ban is
antithetical to these values. It is a patently illegal and discriminatory attempt to
inflict harm upon a religious minority.50 This animus was both proven and
magnified by the manner of the Original Travel Ban’s implementation, which—
without any notice—barred the re-entry of Muslims who have made their home in
our country, separating them from their homes, families, and careers. A
government that acts to hurt people based on their religion (or non-religion)
undermines not only the inclusive principles of the modern technology industry,
but also legal principles “rooted in the foundation soil of our Nation” and

50

Aziz, 2017 U.S. Dist. LEXIS 20889, at *9-13, 27.
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“fundamental to freedom.”51 “Freedom of thought, which includes freedom of
religious belief, is basic in a society of free men [and women].”52
CONCLUSION
For all the foregoing reasons, MassTLC respectfully submits that this Court
should allow the Plaintiffs’ motion for an order temporarily restraining the
execution of the Revised Travel Ban on a nation-wide basis.
Dated: Honolulu, Hawai‘i, March 14, 2017.

/s/ Brett R. Tobin
BRETT R. TOBIN
MICHAEL B. KEATING
KRISTYN DeFILIPP
CHRISTOPHER E. HART
DANIEL L. McFADDEN
Attorneys for Amicus Curiae
MASSACHUSETTS TECHNOLOGY
LEADERSHIP COUNCIL, INC.

51

Epperson v. Arkansas, 393 U.S. 97, 103-09 (1968).

52

United States v. Ballard, 322 U.S. 78, 86 (1944).
18