State of Hawaii v. Trump

Filing 217

MEMORANDUM re 215 Order on Motion for Leave to File, Link,,,, 65 MOTION for Temporary Restraining Order [Amici Curiae Brief in Opposition Support of Plaintiffs' Motion for Temporary Restraining Order] filed by Technology Companies and Other Businesses. (Attachments: # 1 Appendix A_(List of Technology Companies and Other Businesses), # 2 Certificate of Service)(Bronster, Margery) Modified on 3/15/2017 (emt, ).

BRONSTER FUJICHAKU ROBBINS
A Law Corporation
MARGERY S. BRONSTER 4750
[e-mail]
MELINDA WEAVER
10464
[e-mail]
1003 Bishop Street, Suite 2300
Honolulu, HI 96813
Telephone: [phone]
Facsimile: [phone]
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
ROBERT A. ATKINS (pro hac vice pending)
[e-mail]
ANDREW J. EHRLICH (pro hac vice pending)
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PIETRO J. SIGNORACCI (pro hac vice pending)
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1285 Avenue of the Americas
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Telephone: [phone]
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Attorneys for Amici Curiae
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI‘I, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, President of
the United States, et al.,
Defendants.

Case No. 1:17-cv-00050-DKW-KSC
BRIEF OF AMICI CURIAE
TECHNOLOGY COMPANIES
AND OTHER BUSINESSES
IN SUPPORT OF PLAINTIFFS’
MOTION FOR A TEMPORARY
RESTRAINING ORDER;
APPENDIX “A”; CERTIFICATE
OF SERVICE

TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ............................................................................... 1
BACKGROUND .......................................................................................................1
ARGUMENT .............................................................................................................4
I.

LIKE THE FIRST TRAVEL BAN, THE NEW TRAVEL BAN
WILL CAUSE IRREPARABLE HARM TO U.S. BUSINESSES
AND THEIR EMPLOYEES. .............................................................................. 8

II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. .................. 12
A. The New Travel Ban Violates the Immigration And Nationality
Act. ..............................................................................................................12
1. The Order Violates the Prohibition of Nationality-Based
Discrimination ......................................................................................12
2. The Order Exceeds the Authority Vested in the President and
is Arbitrary ............................................................................................13
B. The New Travel Ban Deprives Individuals of Their Constitutional
Rights. .........................................................................................................15
1. Procedural Due Process ........................................................................15
2. Religious Discrimination ......................................................................17
3. Equal Protection ...................................................................................20
III. THE BALANCE OF THE EQUITIES AND THE INTEREST OF
THE PUBLIC FAVOR NATIONWIDE INJUNCTIVE RELIEF
BARRING ENFORCEMENT OF THE NEW TRAVEL BAN. ......................21
CONCLUSION ........................................................................................................25

i

TABLE OF AUTHORITIES
Page(s)

CASES

Abdelfattah v. U.S. Dep’t of Homeland Sec.,
787 F.3d 524 (D.C. Cir. 2015) ............................................................................16
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986) ..........................................................................14
Aziz v. Trump,
No. 1:17–cv–116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .......................5, 8
Ball v. Massanari,
254 F.3d 817 (9th Cir. 2001) ..............................................................................20
Benson v. Arizona State Bd. of Dental Examiners,
673 F.2d 272 (9th Cir. 1982) ..............................................................................20
City of New Orleans v. Dukes,
427 U.S. 297 (1976) ............................................................................................20
Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532 (1985) ............................................................................................15
Clinton v. City of New York,
524 U.S. 417 (1998) ............................................................................................14
Darweesh v. Trump,
No. 17 Civ. 480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017) .........................5, 8
De La Cruz v. Tormey,
582 F.2d 45 (9th Cir. 1978) ................................................................................20
Epperson v. State,
408 U.S. 104 (1968) ............................................................................................17
Grayned v. City of Rockford,
393 U.S. 97) ..................................................................................................14, 17
In re Jean,
23 I & N Dec 373 (2002) ......................................................................................5
ii

Larson v. Valente,
456 U.S. 228 (1982) ......................................................................................17, 18
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995) ..............................................................................12
Lemon v. Kurtzman,
403 U.S. 602 (1971) ............................................................................................18
Mama Loa Foundation v. Hawaii,
No. 12–00088 DAE–KSC, 2012 WL 518562 (D. Haw. Feb. 15, 2012) ............ 24
McCreary Cty. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ............................................................................................17
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................................21
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .....................................................................passim
Washington v. Trump,
No. C17–0141–JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) ...............5, 7
United States v. Windsor,
133 S. Ct. 2675 (2013) ........................................................................................21
Young v. Lau,
No. 11–00110 LEK–KSC, 2011 WL 744928
(D. Haw. Feb. 22, 2011) .....................................................................................24
STATUTES
8 U.S.C. § 1152(a)(1)(A) ...................................................................................12, 13
8 U.S.C. § 1182(f) ..............................................................................................13, 14
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ................................................................................................17
U.S. Const. amend. V...................................................................................15, 16, 20

iii

OTHER AUTHORITIES
Americas Soc’y & Council of The Americas, Bringing Vitality To
Main Street (2015), https://goo.gl/i9NWc9 .......................................................... 9
The Ruling On The Travel Ban: A Lose-Lose Scenario For Business
Travel And The Economy, http://blog.gbta.org/2017/02/09/theruling-on-the-travel-ban-a-lose-lose-scenario-for-business-traveland-the-economy/ .................................................................................................7
Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief
6-13 (Jan. 23, 2017), https://goo.gl/D0bRkS ......................................................14
Donald J. Trump (@realDonaldTrump), Twitter (January 30, 2017,
5:31 AM) https://twitter.com/realdonaldtrump/status/
826060143825666051) .......................................................................................23
Donald J. Trump Statement on Preventing Muslim Immigration,
https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration; Meet the Press
(NBC television broadcast July 24, 2016) ............................................................ 2
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017) ..........................2, 18, 19
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) ......................3, 12, 13
Jackie Wattles, Aaron Smith and Shannon Gupta,
Trump’s travel ban: Companies and executives speak out,
CNN Money (January 31, 2017, 4:00 AM ET)
http://money.cnn.com/2017/01/30/news/companies/travel-banexecutives-business-reactions/ ............................................................................11
Jeremy M. Levin et al., Letter to the Editor, US Immigration Order
Strikes Against Biotech, Fin. Times (Feb. 7, 2017), http://im.ftstatic.com/content/images/ceb8e742-ed3c-11e6-930f061b01e23655.pdf ..............................................................................................11
Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority
to Exclude Aliens: In Brief (2017), https://goo.gl/D0bRkS ................................14

iv

Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134
Foreign Policy Experts, N.Y. Times (Mar. 11, 2017),
https://www.nytimes.com/2017/03/11/us/politics/trump-travel-bandenounced-foreign-policy-experts.html..............................................................20
Laura Jarrett, et al., “Trump Delays New Travel Ban after WellReviewed Speech,” CNN (Mar. 1, 2017, 6:01 AM),
http://www.cnn.com/2017/02/28/politics/trump-travel-ban-visaholders/ ................................................................................................................23
Matthew Nussbaum, Josh Gerstein and Cristiano Lima, White House
creates confusion about future of Trump’s travel ban, Politico,
Feb. 21, 2017, http://www.politico.com/story/2017/02/trumptravel-ban-confusion-235241. .............................................................................19
P’ship for a New Am. Econ., The “New American” Fortune 500
(2011), http://goo.gl/yc0h7u .............................................................................6, 9
P’ship for a New Am. Econ., Open For Business: How Immigrants
Are Driving Small Business Creation in the United States (2012),
https://goo.gl/zqwpVQ ..........................................................................................9
Robert Kahn, Opinion, The Muslim Travel Ban Could Cost America
$66 Billion a Year, Newsweek (Feb. 2, 2017, 7:10 AM) ..................................... 7
Samantha Masunaga, CEOs speak out about Trump’s travel ban,
Los Angeles Times (Jan. 31, 2017, 3:10 P.M.)
http://www.latimes.com/business/la-fi-ceo-tweets-trump20170130-story.html ...........................................................................................11
Stuart Anderson, Nat’l Found. For Am. Policy, The Contributions of
the Children of Immigrants to Science in America (2017),
http://nfap.com/wp-content/uploads/2017/03/Children-ofImmigrants-in-Science.NFAP-Policy-Brief.March-2017.pdf .............................. 9
Ted Hesson & Jennifer Scholtes, Confusion over Trump’s Travel Ban
Deepens, Politico (Jan. 30, 2017, 8:50 PM),
http://www.politico.com/story/2017/01/trump-immigration-travelban-chaos-234410 ...............................................................................................23

v

The Ruling on the Travel Ban: A Lose-Lose Scenario for Business
Travel and the Economy, Bus. Travel (Feb. 9, 2017),
http://blog.gbta.org/2017/02/09/the-ruling-on-the-travel-ban-alose-lose-scenario-for-business-travel-and-the-economy/.................................... 7
US immigration order strikes against biotech, Trade Secrets: a blog
from Nature Biotechnology (Feb. 7, 2017),
http://blogs.nature.com/tradesecrets/2017/02/07/us-immigrationorder-strikes-against-biotech. ...........................................................................11

vi

INTEREST OF AMICI CURIAE
Amici curiae are 58 leading businesses from the technology sector and other
parts of the U.S. economy. A list of amici is set forth in Appendix A. These
companies operate or have users throughout the U.S., including in Hawaii, and
collectively employ millions of Americans as well as hundreds of thousands of
individuals from around the globe.
Amici have a strong interest in this case because a ruling denying Plaintiffs’
motion for a temporary restraining order would cause constitutional injuries to
occur and would inflict significant and irreparable harm on U.S. businesses and
their employees.
BACKGROUND
Since the dawn of the digital age and the proliferation of the Internet, the
amici technology companies and thousands of other businesses throughout the
American economy have prospered and grown through the hard work, innovation
and genius of immigrants and refugees.

The technological and scientific

breakthroughs that fuel the economic engine of the country—search, cloud
computing, social media, artificial intelligence, faster and faster microprocessors,
the Internet of Everything, reusable spacecraft—were all made possible by the
ingenuity, imagination and invention of newcomers to America, including Muslims
from across the world. Never in modern American history has that infusion of

1

talent and passion and creativity been stanched, as it is vital to the lifeblood of our
economy. Never, until now.
On January 27, 2017, one week after being sworn into office, President
Donald Trump signed Executive Order No. 13,769, entitled “Protecting the Nation
from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1,
2017). The Order limited the ability of certain non-citizens to enter America, and
suspended entry to the U.S. of all citizens of seven Muslim-majority countries for
90 days. Id. § 3. The Order also banned Syrian refugees outright, decreased the
nationwide annual cap on refugee admissions by more than fifty percent, and
created a review system that favored Christian refugees living in Muslim-majority
countries. Id. § 5. In all, this travel ban was a fulfillment of a campaign promise
Donald Trump had made throughout the fall—to institute a “Muslim ban.” 1
Plaintiffs across the nation quickly filed litigation to challenge the legality of
the travel ban, seeking injunctions based on the ongoing and irreparable harm it
caused. The judiciary responded. Among other federal district courts, the U.S.
District Court for the Western District of Washington issued a nationwide
1

See Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7,
2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statementon-preventing-muslim-immigration; Meet the Press (NBC television broadcast
July 24, 2016) (in response to being asked if a plan similar to the travel ban was a
“rollback” from “[t]he Muslim Ban,” then-candidate Trump stated: “I actually
don’t think it’s a rollback. In fact, you could say it’s an expansion. . . . I’m
looking now at territory. People were so upset when I used the word Muslim. Oh,
you can’t use the word Muslim. Remember this. And I’m OK with that, because
I’m talking territory instead of Muslim.”).
2

injunction barring enforcement of the travel ban, holding it to be an improper
exercise of executive power that caused substantial harm to individuals in the U.S.
and abroad. Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040, at *3
(W.D. Wash. Feb. 3, 2017). On appeal, a group of U.S. businesses, including
many members of amici here, filed an amici curiae brief before the Ninth Circuit
Court of Appeals to explain that President Trump’s first travel ban was inflicting
substantial harm on U.S. companies and their employees. See Brief of Technology
Companies and Other Businesses as Amicus Curiae in Support of Appellees,
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (No. 17-35105).

On

February 9, 2017, the Ninth Circuit Court of Appeals declined to stay the district
court’s nationwide injunction. Washington, 847 F.3d at 1151. The Ninth Circuit
held that the travel ban caused substantial harm in part by preventing nationals of
seven Muslim-majority countries from entering the U.S. for the purpose of
accepting employment with U.S. entities. See id. at 1168–69.
In response to the Ninth Circuit’s decision, President Trump issued a new
“Muslim ban” on March 9, 2017 through Executive Order No. 13,780. 82 Fed.
Reg. 13,209 (Mar. 9, 2017). This new version of the travel ban still bars entry to
the U.S. by citizens of six Muslim-majority countries who are not current visa
holders, and it suspends all decisions on applications for refugees for 120 days. Id.
§§ 2(c), 6. Absent judicial intervention, this new travel ban will go into effect on
March 16, 2017. Id. § 14.
3

ARGUMENT
Consider five scenarios:
• A U.S. resident employed at a cutting-edge software company fears
that he cannot leave the U.S. because he is a national of a Muslimmajority country targeted by President Trump’s travel ban. If he
attempts to travel outside the country, he could be detained and
refused re-entry. After the travel ban went into effect, he canceled
plans to bring his mother to the U.S. to visit him, out of concern
that she might be detained or turned away. He has not been home
for five years. The U.S. company he works for, which employs
over 100 people and has raised hundreds of millions of dollars in
capital, was founded by an immigrant.
• A high-tech, U.S.-based software company devoted significant
resources to an event it scheduled in February 2017 where it
planned to host owners of small businesses and tech start-ups
based overseas. Before these entrepreneurs became business and
start-up owners, they were Syrian refugees. After President
Trump’s travel ban went into effect on January 27, 2017, the event
was abruptly postponed, because the guests were unable to travel
to the U.S. on account of their status as Syrian refugees. The U.S.based software company plans to reschedule the event at a
location outside the U.S., so the Syrian refugees and entrepreneurs
can safely attend.
• A U.S.-based mobile app and website development company with
millions of users worldwide employs U.S. residents who are
nationals of the Muslim-majority countries targeted by President
Trump’s travel ban. In late January and February 2017, some of
these employees had planned to fly outside the U.S. for business or
personal reasons. Since the travel ban was announced, these
employees canceled their flights for fear they would be detained or
not permitted to re-enter the U.S.
• A U.S.-based technology company courted promising job
candidates overseas and was prepared to offer them employment
when the prospects suddenly withdrew from consideration because

4

they were worried about immigration issues in light of President
Trump’s travel ban.
• After the implementation of President Trump’s travel ban, foreignborn founders of a U.S.-based technology company began
exploring the possibility of moving their company outside of the
U.S.—and taking the company’s jobs with them.
These are not hypotheticals. They are just a handful of the myriad realworld examples of injury President Trump’s first travel ban inflicted on amici and
their business partners in the U.S. Each instance illustrates what federal courts
across the country have recognized: the U.S. government’s restrictions on travel
through nationality- and religion-based discrimination causes substantial harm,
including to U.S. businesses and their employees. See Washington, 2017 WL
462040, at *2; Darweesh v. Trump, No. 17 Civ. 480, 2017 WL 388504, at *1
(E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, No. 1:17-cv-116 (LMB/TCB), 2017 WL
580855, at *10 (E.D. Va. Feb. 13, 2017).
A travel ban based on national origin or religion runs directly contrary to the
principle of inclusion that is the bedrock of our country. “From its inception, the
United States has always been a nation of immigrants; it is one of our greatest
strengths.” In re Jean, 23 I & N Dec 373, 383–84 (2002) (quoted in Singh v.
Riding, No. CV-F-07-1198 OWW/SMS, 2008 WL 162603, at *2 (E.D. Cal. Jan.
17, 2008)). Our country’s economy and businesses also have benefited from
diversity, inclusiveness, and competition fueled by immigration—“America is a

5

nation of immigrants, and the American economy is an economy of immigrants.”2
U.S. companies thrive on the creativity, entrepreneurship, and determination that
immigrants bring with them to this country. For these very reasons, our country
has for decades maintained a system of openness to immigrants and refugees,
balanced by well-calibrated controls such as background checks and border
security measures designed to protect the nation from legitimate threats.
President Trump’s first unconstitutional “Muslim ban” sent this system into
upheaval. The travel ban closed our nation’s borders to immigrants and refugees
based solely on their national origin or religion.

It inflicted arbitrary and

irreparable harm on U.S. businesses and their employees. In the brief time the first
travel ban was fully operational, scores of employees of U.S. businesses were
detained at airports and separated from their families; numerous business events,
conferences, and meetings in the U.S. and abroad were canceled; and countless
business trips into or out of the U.S. were delayed or disrupted. On top of the
injuries suffered by employees of U.S. companies and their families, one study
estimated that the first travel ban cost U.S. businesses $185 million in business
travel bookings alone. 3 Amici, such as ride-share and travel businesses, are among
2

P’ship for a New Am. Econ., The “New American” Fortune 500, at 5 (2011),
http://goo.gl/yc0h7u.
3
See The Ruling on the Travel Ban: A Lose-Lose Scenario for Business Travel
and the Economy, Bus. Travel (Feb. 9, 2017), http://blog.gbta.org/2017/02/09/theruling-on-the-travel-ban-a-lose-lose-scenario-for-business-travel-and-theeconomy/.
6

those damaged; several amici already lost bookings from the first travel ban due to
travel from the banned countries being enjoined, and they are certain to lose more
if the proposed new ban takes effect.
And that is apart from the unquantifiable losses the U.S. economy suffered
because the travel ban blocked entry to the next groundbreaking entrepreneur,
innovator, inventor, founder, or artist—and solely on account of her national origin
and religion. Those incalculable losses are all the more acute for amici, technology
companies who depend significantly on immigrant talent. If this Court permits
President Trump’s new travel ban to be implemented, the losses will not abate any
time soon. By some reports, U.S. businesses are expected to lose $66 billion
annually as a result of the travel ban, along with as many as 132,000 jobs. 4
President Trump’s first travel ban was challenged in court as a deprivation
of individuals’ constitutional rights and as impermissible discrimination on the
basis of religion or nationality. Federal courts enjoined enforcement of the travel
ban in light of the substantial and irreparable harm it was likely to cause, including
to U.S. businesses and their employees. See Washington, 2017 WL 462040, at *2;
Darweesh, 2017 WL 388504, at *1; Aziz, 2017 WL 580855, at *10.
President Trump’s new travel ban is no different. It will inflict the same
substantial and irreparable harm upon U.S. companies and their employees. And
4

See Robert Kahn, Opinion, The Muslim Travel Ban Could Cost America $66
Billion a Year, Newsweek (Feb. 2, 2017, 7:10 AM), http://www.newsweek.com
/muslim-ban-could-cost-america-66-billion-year-551264.
7

in implementing the promise of a “Muslim ban,” the new travel ban suffers from
many of the same defects as the first travel ban. It violates the prohibition against
nationality-based discrimination that Congress established through the Immigration
and Nationality Act. It exceeds the authority granted to the Executive. It is
arbitrary and overbroad in scope. And it impermissibly discriminates on the basis
of religion and deprives individuals of Due Process rights, thus violating the U.S.
Constitution. In sum, President Trump’s new travel ban has not overcome the
constitutional and legal deficiencies that led courts to enjoin his first travel ban.
Accordingly, the new travel ban should meet the same fate as the first travel ban—
it should be enjoined nationwide.
I.

LIKE THE FIRST TRAVEL BAN, THE NEW TRAVEL BAN WILL
CAUSE IRREPARABLE HARM TO U.S. BUSINESSES AND THEIR
EMPLOYEES.
Cutting off amici and other U.S. companies from broad swaths of foreign-

born talent will have profound and irreparable consequences.
Many of America’s leading entrepreneurs, including at amici, are
immigrants. “The American economy stands apart because, more than any other
place on earth, talented people from around the globe want to come here to start
their businesses.”5 Indeed, forty percent of Fortune 500 companies were founded

5

Partnership for a New American Economy, The “New American” Fortune 500, at
5 (2011), http://goo.gl/yc0h7u.
8

by immigrants or by their children. 6 These companies together account for over
$4.25 trillion in annual revenues and collectively employ more than 10 million
people.7 This trend shows no sign of slowing.
Critically for these amici, who require a workforce skilled in technology, a
recent report from the National Foundation for American Policy found that 83% of
the top performing students in the renowned Intel science competition for U.S.
high schools were the children of immigrants.8 Immigrants also play an outsize
role in starting new businesses in the U.S. economy: “While accounting for 16
percent of the labor force nationally and 18 percent of business owners, immigrants
make up 28 percent of Main Street business owners.” 9
The potential injury that amici face from the implementation of the new
travel ban is far from speculative or theoretical. Amici and their employees already
suffered irreparable harm as a result of the first travel ban’s suspension of refugee
applications and restriction on travel to the U.S. by nationals of certain Muslimmajority countries, as discussed supra p. 4. These are elements of the program that
6

Id. at 2, 6.
Id. at 2, 6, 22, 27.
8
Stuart Anderson, Nat’l Found. for Am. Policy, The Contributions of the
Children of Immigrants to Science in America at 1–3, 5, 12 (2017),
http://nfap.com/wp-content/uploads/2017/03/Children-of-Immigrants-inScience.NFAP-Policy-Brief.March-2017.pdf.
9
Americas Soc’y & Council of The Americas, Bringing Vitality To Main Street
at 2 (2015), https://goo.gl/i9NWc9; see also Partnership for a New American
Economy, Open For Business: How Immigrants Are Driving Small Business
Creation in the United States 3, Aug. 2012, https://goo.gl/zqwpVQ.
7

9

the Trump administration has retained in its new travel ban, and they are certain to
cause the same harm if they go into effect.
Beginning March 16, 2017, absent injunctive relief from the Court, amici
and the rest of the U.S. business community will see potential interviewees, new
employees, and employees stationed outside the U.S. cancel flights into the U.S.
for fear of being detained or otherwise not permitted to enter the U.S.; employees
who are current U.S. residents and intend to travel outside the country for work or
personal reasons cancel trips for fear they will be detained or not permitted to
return to the U.S.; and family members of current U.S. residents cancel visits to the
country for fear they will be detained or otherwise not permitted to enter the U.S.
Under these conditions, many of the most talented employees from around the
world would be unwilling or unable to come to the U.S. to accept employment by
U.S. companies. Workers come to the U.S., often on H1-B visas, which are nonimmigrant visas, with the hopes of obtaining legal permanent resident status. The
weakening of interest on the part of workers abroad to come to the U.S. is a
significant, unquantifiable and irreparable harm to amici and other U.S. companies.
This puts U.S. companies at a distinct disadvantage relative to their global
competitors. Amici and other U.S. companies must be able to successfully recruit
top talent from around the world in order to compete in the global marketplace.
And amici and other U.S. companies require the ability to retain immigrant
employees who are U.S. residents and need to travel outside the U.S. for business
10

or personal reasons. The new travel ban thus presents a direct threat to amici and
other U.S. companies.
U.S. companies in related industries face similar harms in light of the
impending travel ban. Chief executives from more than 160 biotech companies
signed an open letter stating that the travel ban puts America “at risk of losing its
leadership position in one of its most important sectors, one that will shape the
world in the twenty-first century.” 10 The biotech companies’ letter also noted that
more than half of the 69,000 biomedical researchers working in the U.S. were born
outside the country. 11 And U.S. companies as disparate as Ford, Bank of America,
Coca-Cola, and the New York Times have all spoken out against the travel ban as
an impediment to their business and a violation of their core principles. 12
The new travel ban would place U.S. companies, including amici, at a severe
disadvantage compared to companies outside the U.S. that are free to hire

10

US immigration order strikes against biotech, Trade Secrets: a blog from Nature
Biotechnology (Feb. 7, 2017), http://blogs.nature.com/tradesecrets/2017/02/07/usimmigration-order-strikes-against-biotech.
11
Id.
12
See Samantha Masunaga, CEOs speak out about Trump’s travel ban, Los
Angeles Times (Jan. 31, 2017), http://www.latimes.com/business/la-fi-ceo-tweetstrump-20170130-story.html; Jackie Wattles, Aaron Smith and Shannon Gupta,
Trump’s
travel
ban:
Companies
and
executives
speak
out,
CNN
Money
(January
31,
2017),
http://money.cnn.com/2017/01/30/news/companies/travel-ban-executivesbusiness-reactions/.
11

individuals from all countries, and free to let their employees travel internationally
without fear of detention or retribution—except, perhaps, to the U.S.
II.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A.

The New Travel Ban Violates the Immigration And Nationality
Act.
1.
The Order Violates the Prohibition of Nationality-Based
Discrimination

Section 202(a)(1)(A) of the Immigration and Nationality Act (INA), 8
U.S.C. § 1152(a)(1)(A), prescribes clearly that “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.” By halting the issuance of visas to nationals of six specific countries—
Iran, Libya, Somalia, Sudan, Syria, and Yemen—the Order violates the INA by
classifying by nationality, and only nationality.

The Order expressly

acknowledges, repeatedly, that it regulates “the visa-issuance process,” New Order
§§ 1(a) and 3(c), which directly contravenes Section 202(a)(1)(A)’s prohibition on
“discriminat[ion] . . . in the issuance of an immigrant visa because of . . .
nationality.” And courts have interpreted Section 202(a)(1)(A) broadly. See, e.g.,
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469,
473 (D.C. Cir. 1995) (striking down a “nationality-based regulation” because
“Congress has unambiguously directed that no nationality-based discrimination

12

shall occur” under Section 202, and “Congress could hardly have chosen more
explicit language,”) (vacated on other grounds).
The new travel ban relies on the purported authority of Section 212(f) of the
INA, which permits the President, in certain circumstances, to suspend “entry” into
the U.S. 8 U.S.C. § 1182(f). While that is the authority the new order cites, that is
not in fact what it does. Rather, nationals of the six countries who possess valid
visas can enter the U.S. even while the new travel ban is in effect. New Order §
3(a). Thus, the new travel ban’s only effect is to discriminate in the issuance of
visas against certain individuals based solely on their nationality—precisely what
Section 202 prohibits.
2.

The Order Exceeds the
President and is Arbitrary

Authority

Vested

in

the

The President justifies the Order on his statutory authority to exclude
noncitizens.

Under the most basic principles of statutory interpretation, that

general authority, vested in Section 212(f), cannot override Section 202’s specific
nondiscrimination requirement.

Section 202 was enacted thirteen years after

Section 212(f) and can only logically be read as limiting the authority granted by it.
Allowing the President to disregard the requirements of Section 202 would imply
that, under the authority of Section 212(f), the President could override any of the
INA’s visa criteria or admissibility grounds. Section 212(f) does not allow this.
Cf. Abourezk v. Reagan, 785 F.2d 1043, 1057 (D.C. Cir. 1986) (holding that the

13

Executive may not “nullif[y]” the contours of existing inadmissibility grounds or
“evade the limitations Congress” has imposed); Clinton v. City of New York, 524
U.S. 417, 443 (1998) (holding that Congress may not give the President “the power
to cancel portions of a duly enacted statute”).
The new travel ban also invokes Section 212(f) in an “arbitrary and
discriminatory” manner, conduct that is prohibited by the Due Process Clause. See
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Put simply, the new travel
ban exercises discretion afforded under Section 212(f) to impose an overbroad ban
on immigration from six countries, applying to many millions of individuals who
could not plausibly be foreign terrorists—including many hundreds of thousands of
students, employees, and family members of citizens who have already been
admitted to the U.S. The result is therefore arbitrary. In every prior Executive
Order utilizing Section 212(f), Presidents issued targeted restrictions, typically
limited to dozens or hundreds of individuals and based on the explicit
determination that each of these individuals had engaged in culpable conduct, such
as illegal entry or human trafficking.

See Cong. Research Serv., Executive

Authority

Brief

to

Exclude

Aliens:

In

at

6–10

(Jan.

23,

2017),

https://goo.gl/D0bRkS (listing each of the previous orders). This new Order is
unprecedented in scope and arbitrariness, but for the original Order.

14

B.

The
New
Travel
Ban
Their Constitutional Rights.

Deprives

Individuals

of

Like the first travel ban, the new travel ban imperils individuals’
constitutional rights to due process, freedom from religious discrimination, and
equal protection under the law. This is apparent from the text of the new Order
and from the overwhelming evidence that it is primarily motived by improper
discriminatory purpose.

That evidence belies the Government’s characterization

of the Order as a neutral security measure. To the contrary, the new Order is
simply another attempt to effectuate President Trump’s campaign promise to
restrict the entry of Muslims into the U.S.

The U.S. Constitution cannot

countenance such a policy.
1.

Procedural Due Process

The Fifth Amendment provides that “no person shall . . . be deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. “An
essential principle of due process is that a deprivation of life, liberty, or property be
preceded by notice and opportunity for hearing appropriate to the nature of the
case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation
omitted). The Ninth Circuit held in Washington that Due Process requires “the
opportunity to present reasons not to proceed with the deprivation and have them
considered.” 847 F.3d at 1164.

15

If it is not enjoined, the new Order will prejudice the liberty interest of
thousands of individuals—including U.S. citizens and their relatives, as well as
visa-holders within the U.S.—without affording the process required by the Fifth
Amendment. Section 2(c) of the Order would prevent American citizens like
Plaintiff Elshikh from sponsoring or receiving visits from loved ones from the six
Muslim-majority countries. The new Order will also effectively prevent certain
visa-holders—including individuals with single entry visas—from traveling
outside the U.S. to attend academic conferences or work meetings, engage in
religious pilgrimage, visit ailing relatives or attend funerals, as such individuals
would not be guaranteed re-entry to the U.S. See Compl. 83–84. 13
The Government claims that the new Order “applies only to aliens who have
no due-process rights in connection with their entry into this country, and it
specifically excludes all categories of aliens about whom the Ninth Circuit had
expressed concern.” Defs’ Mem. & Opp’n to Pls.’ Mot. for TRO 36. Not so.
Individuals who will be affected by the new Order have Due Process rights, for the
reason the Ninth Circuit already recognized: even “aliens who are in the United
States unlawfully . . . have due process rights[,]” as do “citizens who have an

13

It is well established that the right to travel is an important liberty interest
protected by the Fifth Amendment. See Abdelfattah v. U.S. Dep’t of Homeland
Sec., 787 F.3d 524, 539 (D.C. Cir. 2015) (“The Due Process Clause of the Fifth
Amendment protects a liberty interest in international travel.”).
16

interest in specific non-citizens’ ability to travel to the United States.”
Washington, 847 F.3d at 1166.
The new Order provides insufficient process to accompany the deprivation
of these individuals’ important liberty interests—a vague possibility of a waiver
from enforcement of the Order under §3(c) is no replacement for meaningful
process.

See Grayned, 408 U.S. at 108 (“[I]f arbitrary and discriminatory

enforcement is to be prevented, laws must provide explicit standards for those who
apply them.”). If the new Order is not enjoined, thousands of individuals will be
deprived of their liberty and denied a meaningful opportunity to challenge this
deprivation. Such an outcome offends the Due Process clause and should not be
permitted to occur.
2.

Religious Discrimination

By targeting those born in six Muslim-majority countries for wholesale
exclusion from the U.S., the new Order violates the Establishment Clause of the
First Amendment. There is abundant evidence that the new Order is designed to
deliver on President Trump’s campaign promise to effectuate a “Muslim ban.”
The First Amendment bars any “law respecting an establishment of
religion.” U.S. Const. amend. I. This clause is violated by laws that evidence an
official preference for one religion over another. See Larson v. Valente, 456 U.S.
228, 244 (1982); see also McCreary Cty. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 875 (2005) (observing the central Establishment Clause principle that
17

“the government may not favor one religion over another”). The Establishment
Clause also cautions that the“[Government] may not be hostile to any religion” or
“adopt programs or practices . . . which . . . oppose any religion.” Epperson v.
State, 393 U.S. 97, 104, 106 (1968).
Under the Lemon v. Kurtzman standard, government action: “(1) must have
a secular legislative purpose, (2) may not have the principal or primary effect of
advancing or inhibiting religion, and (3) must not foster excessive government
entanglement with religion.” 403 U.S. 602, 612–13 (1971). Under a related
standard, laws that discriminate among religious denominations are subject to strict
scrutiny. Larson, 456 U.S. at 246.
The discriminatory purpose of the new Order is evident from its text.
Section 2(c) applies exclusively to foreign nationals from Muslim-majority
nations.

Moreover, the text references stereotypes about Islam completely

unrelated to terrorism, mandating that the Attorney General collect information
regarding “honor killings.” Order §11(iii).
That the new Order omits the original Order’s explicit preference for
religious minorities does not remedy its constitutional deficiencies. As President
Trump’s senior associates have touted, this revised Order merely employs minor,
“technical” revisions in an attempt to skirt the federal court’s injunction and

18

achieve “the same basic policy outcome” 14—that is, limiting the entry of Muslims
into the U.S.
President Trump’s explicit pledge to ban Muslims from the U.S. provides
clear evidence of the discriminatory intent behind this new Order. Then-candidate
Trump called for “a total and complete shutdown of Muslims entering the
country” 15—a shutdown that President Trump and his advisors have sought to “do
[] legally” by scrubbing the more overt discriminatory language from the new
Order’s text. 16 Discriminatory purpose is further evidenced by the disconnect
between the Order’s stated purpose—preventing terrorism—and what it actually
accomplishes.

The Order is both over- and under-inclusive: it bars foreign

nationals who are extremely unlikely to present a threat (including the elderly and
young children) while failing to address the terrorism risk presented by native-born

14

Matthew Nussbaum, Josh Gerstein and Cristiano Lima, White House creates
confusion about future of Trump's travel ban, Politico, Feb. 21, 2017,
http://www.politico.com/story/2017/02/trump-travel-ban-confusion-235241.
15
Statement by Donald J. Trump on Preventing Muslim Immigration (Dec. 7,
2015). As of March 14, 2017, this statement remains available on President
Trump’s campaign website: https://www.donaldjtrump.com/press-releases/donaldj.-trump-statement-on-preventing-muslim-immigrationwww.donald.trump.com..
16
See Amy B. Wang, Trump asked for a ‘Muslim ban,’ Guiliani says – and
ordered a commission to do it “legally”, Washington Post (Jan. 29, 2017),
https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-amuslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.a466e1636ffb.
19

U.S. citizens. 17 As over one hundred foreign policy and national security officials
point out, far from enhancing national security, the new Order is “damaging to the
strategic and national security interest of the United States.” 18
3.

Equal Protection

For the same reasons, the new Order violates the Equal Protection Clause of
the Fifth Amendment, which bars discrimination by the federal government against
individuals on the basis of religion or ancestry. See De La Cruz v. Tormey, 582
F.2d 45, 49 (9th Cir. 1978).
In conducting an equal protection analysis, a court must first determine
whether a challenged classification burdens a suspect or quasi-suspect class. Ball
v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001). As discussed above, the new
Order discriminates on the basis of both nationality and religion, and thus warrants
strict scrutiny. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per
curiam) (describing religion and alienage as an “inherently suspect distinctions”);
Benson v. Arizona State Bd. of Dental Examiners, 673 F.2d 272, 277 n. 15 (9th
Cir. 1982) (describing nationality as a suspect classification). The new Order
cannot survive such scrutiny, because it does not serve a compelling government
17

Indeed, while the Order cites terrorist acts committed by two Iraqi nationals in
the United States as a justification for the travel ban, see Order §1(h), Iraqi
nationals are not included in this ban. Order §1(c).
18
See Lara Jakes, Trump’s Revised Travel Ban Is Denounced by 134 Foreign
Policy Experts, N.Y. Times (Mar. 11, 2017), https://www.nytimes.com
/2017/03/11/us/politics/trump-travel-ban-denounced-foreign-policy-experts.html.
20

interest, but instead serves an unconstitutional one: limiting the entry of Muslims
and those from Muslim-majority nations into the U.S. Moreover, rather than being
narrowly tailored to its stated aim of preventing terrorism, it is both overbroad and
under-inclusive, barring millions from entering the U.S. who cannot credibly be
deemed security risks while ignoring entirely risks presented by U.S. citizens or
those from other nations not included in the Order. See supra p. 19.
Even under the rational basis standard, the new Order cannot survive.
Courts apply a more searching rational basis review where the challenged action
“has the peculiar property of imposing a broad and undifferentiated disability on a
single named group.” Romer v. Evans, 517 U.S. 620, 632 (1996). That is the case
here, where the evidence shows that the new Order is motivated not primarily by
security concerns, but by the “bare desire to harm a politically unpopular group.”
United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (citation omitted).
III.

THE BALANCE OF THE EQUITIES AND THE INTEREST OF THE
PUBLIC FAVOR NATIONWIDE INJUNCTIVE RELIEF BARRING
ENFORCEMENT OF THE NEW TRAVEL BAN.
The balance of the equities and the public interest weigh heavily in favor of

enjoining enforcement of the new travel ban. As described supra pp. 8–12, U.S.
businesses and their employees will be irreparably harmed as soon as the new
travel ban goes into effect.
In addition, the public interest in the free movement of persons is manifest.
In enjoining the first travel ban, the Ninth Circuit held that “the public . . . has an
21

interest in free flow of travel, in avoiding separation of families, and in freedom
from discrimination.” Washington, 847 F.3d at 1169. The same is true with
respect to the new travel ban, which will interrupt travel and separate families
through a system of nationality- and religion-based discrimination.
As with the first travel ban, the government attempts to manufacture false
urgency in arguing that the public interest weighs against a temporary restraining
order. See Defs’ Mem. in Opp’n to Pls.’ Motion for TRO 49–52, ECF No. 145
(Mar. 13, 2017).

But the record does not support any urgent need for

implementation of the new Order.
The Ninth Circuit concluded that the Government had not provided any
meaningful evidence of the purported “urgent need for the [original] Executive
Order to be placed immediately into effect.” Washington, 847 F.3d at 1168. The
Government failed to show that the injunction barring enforcement of the travel
ban did anything more than revert the federal immigration system to the status quo
that existed during the Obama administration. See id. It is no different with the
new version of the ban. Yet again, the Government does not offer evidence to
support its claims of urgency—because no such evidence exists.
If anything, the Government has even less of an argument that the new travel
ban must be implemented on the proposed effective date than it did when it
launched the first travel ban. In the face of criticism that the rollout of the first
travel ban was “chaotic” and that, outside of the White House, “nobody knew
22

anything” about the administration’s plans before the original Order was signed,
the administration defended its decision not to circulate its plans by appealing to
the element of surprise.19 President Trump stated that the rushed rollout was a
strategic decision, and that any advance notice of the administration’s plans would
have undermined the purpose of the travel ban. 20

With its new travel ban,

however, the Government imposed on itself two delays to implementation. First,
the Government withheld the new Order from publication in order to keep
attention on the positive news coverage of the President’s first address to Congress
on February 28, 2017. 21 Second, the administration delayed the effective date of
the new travel ban until March 16, 2017—seven days after the signing of the new
Order on March 9, 2016. The Government therefore has effectively conceded that
a delay in the implementation of the new travel ban will not adversely affect the
administration’s goals with respect to the travel ban.

Accordingly, the

administration will not be harmed if the new travel ban is enjoined.

19

See Ted Hesson & Jennifer Scholtes, Confusion over Trump’s Travel Ban
Deepens, Politico (Jan. 30, 2017, 8:50 PM), http://www.politico.com/
story/2017/01/trump-immigration-travel-ban-chaos-234410.
20
Id.; see also Donald J. Trump (@realDonaldTrump), Twitter (January 30,
2017, 5:31 AM) https://twitter.com/realdonaldtrump/status/826060143825666051)
(“If the ban were announced with a one week notice, the ‘bad’ would rush into our
country during that week.”).
21
See Laura Jarrett, et al., “Trump Delays New Travel Ban after Well-Reviewed
Speech,”
CNN
(Mar.
1,
2017,
6:01
AM),
http://www.cnn.com/2017/02/28/politics/trump-travel-ban-visa-holders/.
23

The purported urgency of implementing the new travel ban is entirely
unsupported by facts, data, or logical explanations that would justify such a
dramatic reversal of American tradition. See id. at 1168 n.7. This Court has
consistently refused to credit “conclusory allegations unsupported by any factual
assertions” in considering requests for equitable relief.

See, e.g., Mama Loa

Foundation v. Hawaii, No. 12–00088 DAE–KSC, 2012 WL 518562, at *3 (D.
Haw. Feb. 15, 2012); Young v. Lau, No. 11–00110 LEK–KSC, 2011 WL 744928,
at *5 (D. Haw. Feb. 22, 2011). Amici respectfully request that this Court follow
the precedent set by the Ninth Circuit in Washington, hold that the Government has
failed to demonstrate any urgent need to implement the new travel ban, and grant
the State’s motion for a temporary restraining order.

24

CONCLUSION
Amici respectfully request that the Court grant Plaintiffs’ motion
for a temporary restraining order.
DATED: Honolulu, Hawai‘i, March 14, 2017.
/s/ Margery S. Bronster
MARGERY S. BRONSTER
MELINDA WEAVER
ROBERT A. ATKINS*
ANDREW P. EHRLICH*
PIETRO J. SIGNORACCI*
Attorneys for Amici Curiae
*Pro hac vice application pending

25