International Refugee Assistance Project et al v. Trump et al

Filing 68

MOTION for Leave to File Brief As Amicus Curiae In Support of Plaintiffs by Harvard Immigration and Refugee Clinical Program (Attachments: # 1 Exhibit Harvard Immigration and Refugee Clinical Program's Amicus Brief)(Salzman, Donald)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
SOUTHERN DIVISION
---------------------------------x
INTERNATIONAL REFUGEE
:
ASSISTANCE PROJECT, et al.
Plaintiffs,

:
Civil Action No.: 8:17-CV-00361-TDC

v.

:

DONALD TRUMP, in his official capacity as :
President of the United States, et al.,
:
Defendants.
:
---------------------------------x
BRIEF FOR AMICUS CURIAE HARVARD IMMIGRATION
AND REFUGEE CLINICAL PROGRAM
IN SUPPORT OF PLAINTIFFS
Deborah Anker*
Sabrineh Ardalan*
Philip Torrey*
Nancy Kelly*
John Willshire Carrera*
Maggie Morgan*
HARVARD IMMIGRATION AND
REFUGEE CLINICAL PROGRAM
6 Everett Street, WCC 3106
Cambridge, Massachusetts 02138
Phone: [phone]
[e-mail]

*Not admitted in this jurisdiction

Donald P. Salzman
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Avenue NW
Washington DC
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Amicus Curiae

TABLE OF CONTENTS
Page
IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................... 1
PRELIMINARY STATEMENT...................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I.

THE PRESIDENT MUST CONSULT WITH CONGRESS TO
DETERMINE THE NUMBER OF REFUGEES WHO MAY BE
ADMITTED PRIOR TO THE START OF THE FISCAL YEAR. ......................................3

II.

THE TEXT OF INA § 207 DOES NOT GRANT THE PRESIDENT THE
POWER TO LOWER THE REFUGEE CEILING IN THE MIDDLE OF
THE FISCAL YEAR. ..........................................................................................................7

III. INA § 212(f) DOES NOT GRANT THE PRESIDENT THE POWER TO
LOWER THE ANNUAL NUMBER OF REFUGEES IN THE MIDDLE
OF THE YEAR. ...................................................................................................................9
CONCLUSION ............................................................................................................................. 12

i

TABLE OF AUTHORITIES
Page(s)
CASES
Andrus v. Glover Constr. Co.,
446 U.S. 608 (1980) ............................................................................................................ 8
Aziz v. Donald Trump,
No. 17-116 (E.D. Va. Feb. 13, 2017) .................................................................................. 1
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .......................................................................................................... 10
Fourco Glass Co. v. Transmirra Prods. Corp.,
353 U.S. 222 (1957) .......................................................................................................... 10
Hillman v. Maretta,
133 S. Ct. 1943 (2013) ........................................................................................................ 8
INS v. Cardozo-Fonseca,
480 U.S. 421 (1987) ............................................................................................................ 5
Matter of S-P-,
21 I. & N. Dec. 486 (B.I.A. 1996) ...................................................................................... 5
State of Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ............................................................................................. 1
Tankersley v. Almand,
837 F.3d 390 (4th Cir. 2016) ............................................................................................... 4
U.S. v. Estate of Romani,
523 U.S. 517 (1998) .......................................................................................................... 10
U.S. v. Fausto,
484 U.S. 439 (1988) .......................................................................................................... 10
STATUTES
8 U.S.C. § 1157 ...................................................................................................................... passim
8 U.S.C. § 1182 ......................................................................................................................... 9, 10
Immigration and Nationality Act, 66 Pub. L. No. 66-414, 66 Stat. 163 (1952) ............................. 9
ii

INA § 207 ............................................................................................................................... passim
INA § 212 ............................................................................................................................... passim
The Refugee Act of 1980, 96 Pub. L. No. 96-212, 94 Stat. 102 (1980) ................................... 4, 10
EXECUTIVE ORDER
82 Fed. Reg. 8977 (Feb. 1, 2017) ................................................................................................... 1
OTHER AUTHORITIES
Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of
the Refugee Act of 1980, 19 San Diego L. Rev. 9 (1981) ................................................... 4
Edward M. Kennedy, Refugee Act of 1980, 15 Int’l Migration Rev. 141 (1981)............................ 4
Catherine McHugh, Cong. Research Serv., 1B77120, Refugees in the U.S. Laws,
Programs, and Proposals (1979) ........................................................................................ 9
Memorandum on Additional Refugee Admissions, 35 Weekly Comp. Pres. Doc. 1634
(Aug. 12, 1999) ................................................................................................................... 9
Refugee Act of 1980: Presidential Statement on Signing S. 643 into Law, Pub. Papers of
Jimmy Carter: 1980–81 (Mar. 18, 1980) ............................................................................ 6
U.S. Dep’t of State, U.S. Dep’t of Homeland Sec., U.S. Dep’t of Health and Human
Serv., Proposed Refugee Admissions for Fiscal Year 2016: Report to Congress
(2016) .................................................................................................................................. 6
CONGRESSIONAL RECORD
Admissions of Refugees into the United States: Hearings before the Subcomm. on
Immigr., Refugees, and Int’l Law of the Comm. on the Judiciary H.R.,
95th Cong. 71 (1977) .......................................................................................................... 6
H.R. Rep. No. 96-1 (1979).............................................................................................................. 5
H.R. Rep. No. 96-2 (1980).............................................................................................................. 5
H.R. Rep. No. 96-781 (1980) .......................................................................................................... 5
S. Rep. No. 96-2 (1980) .......................................................................................................... 5, 8, 9
S. Rep. No. 96-590 (1980) .............................................................................................................. 5

iii

IDENTITY AND INTEREST OF AMICUS CURIAE
The Harvard Immigration and Refugee Clinical Program (HIRC) is a clinical program at
Harvard Law School that is dedicated to the representation of individuals applying for U.S.
asylum and related protections, as well as the representation of individuals who have survived
domestic violence and other crimes and are seeking avoidance of forced removal in immigration
proceedings. Founded in 1984 by Clinical Professor Deborah Anker, HIRC’s clients include
victims of human rights abuses applying for U.S. refugee protection from all over the world,
including from the countries referenced in the President’s January 27, 2017 Executive Order at
issue in this litigation. Executive Order 13769, Protecting the Nation from Foreign Terrorist
Entry into the United States, 82 Fed. Reg. 8977 (Feb. 1, 2017) (“Executive Order”).
Accordingly, HIRC and its clients have a direct interest in the outcome of this action and
respectfully submit this brief in support of Plaintiffs.
PRELIMINARY STATEMENT
President Donald Trump signed a sweeping Executive Order on January 27, 2017 that
exceeds presidential authority. Section 5(d) impermissibly attempts to limit the number of
refugees admitted in fiscal year 2017 to 50,000. Multiple courts have enjoined other aspects of
the Executive Order, given the serious constitutional and statutory questions raised by its
overbroad pronouncements. See, e.g., State of Washington v. Trump, 847 F.3d 1151 (9th Cir.
2017); Aziz v. Donald Trump, No. 17-116, slip op. at *17 (E.D. Va. Feb. 13, 2017).
The Executive Order’s language is in direct contravention of the plain terms of the
Refugee Act of 1980 (“Refugee Act” or “Act”). The Refugee Act, which incorporated U.S.
obligations under the Refugee Convention into U.S. law, mandates that the President “shall . . .
before the beginning of the fiscal year and after appropriate consultation” determine the number

of refugees to be admitted to the United States. 8 U.S.C. § 1157(a)(2) (emphasis added). INA §
212(f) does not grant the President the power to lower the number in the middle of the fiscal
year, simply by citing national security concerns. Indeed, Congress passed the Refugee Act to
establish a structured and systematic mechanism for refugee admissions and to eliminate the
prior ad hoc approach to refugee resettlement. Furthermore, § 212(f) of the Immigration and
Nationality Act (“INA”) does not grant the President the far-reaching authority implicated by the
Executive Order.
Accordingly, we respectfully request that this Court enjoin the Executive Order’s limiting
of the annual number of refugees who may be admitted to 50,000 for the following reasons:
First, INA § 207 requires that the President, in consultation with Congress, set the
number of refugees before the beginning of every fiscal year. The Executive Order conflicts with
the plain language of INA § 207 and the legislative history of the Refugee Act because it
attempts to re-set the number, without consultation with Congress, in the middle of the fiscal
year.
Second, although the INA permits the President, in consultation with Congress, to raise
the number of refugees in the middle of a fiscal year to respond to a humanitarian crisis, it does
not permit him to lower the number in the middle of the fiscal year.
Third, INA § 212(f) does not grant the President the power to override this statutory
scheme. The Executive Order attempts to exercise the general power under INA § 212(f) in a
manner that conflicts with other provisions of the INA that specifically circumscribe the
President’s power, including INA § 207. Under well-settled canons of statutory interpretation,
however, different parts of a statute cannot be read to conflict with one another, and both the
“later in time” and “specific over general” canons of statutory interpretation dictate that INA §

2

207 takes precedence over INA § 212(f).
ARGUMENT
I.

THE PRESIDENT MUST CONSULT WITH CONGRESS TO DETERMINE THE
NUMBER OF REFUGEES WHO MAY BE ADMITTED PRIOR TO THE START
OF THE FISCAL YEAR.
President Trump’s unilateral reduction of the number of refugees to be admitted in fiscal

year 2017 violates the statutory text of INA § 207, is inconsistent with the Refugee Act’s
legislative intent, and disregards the practice that has been followed since the Act’s passage. It
does so in two ways: by decreasing the number of refugees to be admitted in the middle, as
opposed to the beginning, of the fiscal year, and by doing so without first consulting Congress.
The statutory text of INA § 207 requires that admissions be set prior to the beginning of
the fiscal year in consultation with Congress: “Except as provided in subsection (b), the number
of refugees who may be admitted under this section in any fiscal year . . . shall be such number
as the President determines, before the beginning of the fiscal year and after appropriate
consultation.” 8 U.S.C. § 1157(a)(2) (emphasis added). Subsection (b), which addresses refugee
admissions in emergency situations, further states that “such admissions shall be allocated
among refugees of special humanitarian concern . . . in accordance with a determination made by
the President after the appropriate consultation provided under this subsection.” 8 U.S.C.
§ 1157(b) (emphasis added).
This consultation requirement is reiterated in subsection (d) entitled, “Oversight reporting
and consultation requirements,” which mandates a hearing to review the President’s proposal
under either subsection (a) or (b), “unless public disclosure of the details of the proposal would
jeopardize the lives or safety of individuals.” 8 U.S.C. § 1157(d)(3)(B). Furthermore, subsection
(e) sets forth an extensive definition of “appropriate consultation,” including a detailed list of
3

information to “be provided at least two weeks in advance” of discussions “of designated
representatives of the President” with members of Congress. 8 U.S.C. § 1157(e).
Where, as here, the statutory text is unambiguous, the plain language of the statute must
determine its meaning. Tankersley v. Almand, 837 F.3d 390, 395 (4th Cir. 2016) (“When the
words of a statute are unambiguous, then . . . judicial inquiry is complete.”) (internal citations
and quotation marks omitted). President Obama, in consultation with Congress, set the number at
110,000 refugees prior to the start of fiscal year 2017, and the plain language of the statute does
not allow President Trump to override that determination unilaterally.
The legislative history of the Refugee Act supports this same conclusion. The Act sets
forth “a permanent and systematic procedure for the admission to this country of refugees of
special humanitarian concern.” The Refugee Act of 1980, Pub. L. No. 96-212 101(b), 94 Stat.
102, 102 (1980). Prior to the Refugee Act, geographical and ideological preferences governed
refugee admissions to the United States. See Deborah E. Anker & Michael H. Posner, The Forty
Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9, 11 (1981)
(describing the history of the 1965 amendments to the INA, which defined a refugee as a person
from a communist or communist-dominated country, or a country in the Middle East). The
Refugee Act eliminated the ideological definition of refugee and replaced it with a new
definition, which “no longer applies only to refugees ‘from communism’ or certain areas of the
Middle East; it now applies to all who meet the test of the United Nations Convention and
Protocol.” Edward M. Kennedy, Refugee Act of 1980, 15 Int’l Migration Rev. 141, 142–43
(1981) (explaining that the Act “gave new statutory authority to the [U.S.’s] longstanding
commitment to human rights and its traditional humanitarian concern for the plight of refugees
around the world”).

4

The purpose of the Refugee Act was to reform the prior ad hoc and discriminatory
approach to U.S. refugee admissions and to promote a more structured, equitable, and neutral
decision-making process. See H.R. Rep. No. 96-781, at 1 (1980) (Conf. Rep.) (noting that the
Refugee Act aimed to “establish a more uniform basis for the provision of assistance to
refugees”); S. Rep. No. 96-590, at 1 (1980) (Conf. Rep.) (same); see also S. Rep. No. 96-2, at
3757 (1980) (“Contrary to current law, the consultation process is now specifically outlined in
the statute, ending the current parole process which is merely governed by custom and practice.”)
(statement of Sen. Kennedy). In doing so, the Refugee Act brought the U.S. “definition of
‘refugee’ into conformity with the United Nations Convention and Protocol Relating to the
Status of Refugees and . . . g[a]ve ‘statutory meaning to our national commitment to human
rights and humanitarian concerns.’” Matter of S-P-, 21 I. & N. Dec. 486, 492 (B.I.A. 1996)
(quoting S. Rep. No. 256, 96th Cong., 2d Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141, 144);
see also INS v. Cardozo-Fonseca, 480 U.S. 421, 435–38 (1987).
The legislative history further demonstrates that Congress took steps to ensure it had
“ample control over refugee admissions.” H.R. Rep. No. 96-2, at 4500 (1980) (statement of Rep.
Holtzman). As the Conference Report indicates, the legislation provided Congress with “much
greater and more explicit power than it has had before with regard to the numbers and nature of
refugees to be admitted to this country.” Id. at 4501; see also H.R. Rep. No. 96-1, at 35814
(1979) (“The committee was extremely concerned about assuring that Congress has a proper and
substantial role in refugee admissions, given our plenary power over immigration. . . . The bill
now provides that consultation means discussions in person by designated Cabinet-level
representatives of the President with Judiciary Committee members to review the refugee
situation or emergency refugee situation, to project the extent of possible U.S. participation, and

5

to discuss the reasons for believing the proposed admission of refugees is justified by
humanitarian concerns.”) (statement of Rep. Holtzman).
Indeed, in the discussions leading up to the adoption of the Refugee Act, the consultative
process was described as “a give-and-take on both sides” and as “a joint decision.” Admissions of
Refugees into the United States: Hearings before the Subcomm. on Immigr., Refugees, and Int’l
Law of the Comm. on the Judiciary H.R., 95th Cong. 71 (1977) (statement of John W. DeWitt,
Deputy Administrator, Bureau of Security and Consular Aff., Sec’y of State); see also id. at 59
(“I am deeply concerned that, under current law and procedures, Congress has surrendered—to a
great extent—its authority to regulate the flow of refugees to this country. Our bill represents an
attempt to restore this authority and, at the same time, to establish a proper balance between the
executive and the legislative branches of Government in establishing the appropriate procedures
governing their admission.”) (statement of Rep. Eilberg). President Carter’s signing statement
emphasized that the “new admissions policy . . . will permit fair and equitable treatment of
refugees in the United States, regardless of their country of origin” and “will also ensure
thorough consideration of admissions questions by both the Congress and the administration.”
Refugee Act of 1980: Presidential Statement on Signing S. 643 into Law, Pub. Papers of Jimmy
Carter: 1980–81, at 503 (Mar. 18, 1980).
President Trump’s attempt to reduce the refugee ceiling without consulting Congress
violates the robust procedures set forth by statute and well-established practice. See, e.g., U.S.
Dep’t of State, U.S. Dep’t of Homeland Sec., U.S. Dep’t of Health and Human Serv., Proposed
Refugee Admissions for Fiscal Year 2016: Report to Congress (2016). Nowhere in the statute
does it provide the President with unilateral power to lower the annual number of refugees who
may be admitted. Indeed, the only explicit and established exception to the procedure is in the

6

case of emergency refugee situations, with a special provision allowing for mid-year ExecutiveCongressional consultations to admit more refugees when justified by “grave humanitarian
concerns.” 8 U.S.C. § 1157(b).
II.

THE TEXT OF INA § 207 DOES NOT GRANT THE PRESIDENT THE POWER
TO LOWER THE REFUGEE CEILING IN THE MIDDLE OF THE FISCAL
YEAR.
President Trump’s unilateral reduction of the refugee ceiling for fiscal year 2017 violates

the INA’s plain text and the procedural limitations on executive authority over refugee
admissions set forth in INA § 207(b), as well as the Refugee Act’s legislative intent.
As set forth above, the text of INA § 207 is unambiguous about the limits on the
President’s power to determine the number of refugees to be admitted to the United States: this
determination must be made “before the beginning of each fiscal year and after appropriate
consultation” with Congress. 8 U.S.C. § 1157(a)(2) (emphasis added). The only exception to this
annual practice is codified in INA § 207(b), which grants the President, in consultation with
Congress, the power to “fix” a number of refugees to be admitted separately from the
predetermined ceiling to address urgent humanitarian concerns.1 8 U.S.C. § 1157(b). Section
207(d)(3)(B) further explains that this exception may be exercised only to increase the number
of refugee admissions in the case of an unforeseen humanitarian situation.2 8 U.S.C.

1

The full text of INA § 207(b) reads: “If the President determines, after appropriate consultation, that (1) an
unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency
refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the
admission to the United States of these refugees cannot be accomplished under subsection (a) of this section, the
President may fix a number of refugees to be admitted to the United States during the succeeding period (not to
exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among
refugees of special humanitarian concern to the United States in accordance with a determination made by the
President after the appropriate consultation provided under this subsection.” 8 U.S.C. § 1157(b) (emphasis added).
2

The full text of INA § 207(d)(3)(B) reads: “After the President initiates appropriate consultation prior to making a
determination, under subsection (b) of this section, that the number of refugee admissions should be increased
because of an unforeseen emergency refugee situation, to the extent that time and the nature of the emergency
(cont’d)

7

§ 1157(d)(3)(B). As noted, a hearing on the proposal to increase admissions is also required,
unless public disclosure would threaten the lives or safety of individuals. Id.
The Executive Order’s text contravenes well-settled canons of statutory construction.
Under the principle of expressio unius, the statute’s silence regarding the President’s power to
lower the number in the middle of a fiscal year is evidence of the fact that Congress did not grant
this power to the President. If the legislature had intended otherwise, it would have included this
power in the text of the statute. Instead, INA § 207 only affords the President two distinct forms
of authority regarding refugee admissions in consultation with Congress: (a) determining the
number of refugees who may be admitted prior to the start of the fiscal year, and (b) fixing an
additional number of refugees to be admitted during an “unforeseen emergency refugee
situation.” 8 U.S.C. § 1157(a), (b). In addition, where, as here, “Congress explicitly enumerates
certain exceptions . . ., additional exceptions are not to be implied, in the absence of evidence of
a contrary legislative intent.” Hillman v. Maretta, 133 S. Ct. 1943, 1953 (2013) (quoting Andrus
v. Glover Constr. Co., 446 U.S. 608, 616–17 (1980)).
As detailed above, the Refugee Act’s legislative history supports this reading of the
statute. The Conference Report and statements by members of the House and Senate repeatedly
emphasized the humanitarian purpose of the refugee admissions process, reflecting Congress’s
intent only to allow for the increase, not the decrease, of the number of refugees, as emergencies
and additional needs arose. See, e.g., S. Rep. No. 96-2, at 3758, 3756 (1980) (“[The bill] deals
with one of the oldest and most important themes in our Nation’s history—welcoming homeless
refugees to our shores.” “This Act gives statutory meaning to our national commitment to human
________________________
(cont’d from previous page)
refugee situation permit, a hearing to review the proposal to increase refugee admissions shall be held unless public
disclosure of the details of the proposal would jeopardize the lives or safety of individuals.” 8 U.S.C. § 1157(d)
(emphasis added).

8

rights and humanitarian concerns—which are not now reflected in our immigration laws.”)
(statement of Sen. Kennedy); Catherine McHugh, Cong. Research Serv., 1B77120, Refugees in
the U.S. Laws, Programs, and Proposals 1 (1979) (“Emphasis is placed on the development of a
policy which would have a permanent statutory basis, but which would be flexible enough to be
responsive to unforeseen emergency refugee situations.”). As a result of these discussions, the
final Act built in the procedure for additional admittances to meet “emergency [refugee]
situations.” S. Rep. No. 96-2, at 3757 (1980) (statement of Sen. Kennedy).3 By contrast, there is
no evidence of Congressional intent to authorize a mid-year reduction.
III.

INA § 212(f) DOES NOT GRANT THE PRESIDENT THE POWER TO LOWER
THE ANNUAL NUMBER OF REFUGEES IN THE MIDDLE OF THE YEAR.
The Executive Order invokes as the sole basis for its authority INA § 212(f), which

permits the President to “suspend the entry of all aliens or any class of aliens” upon a finding that
“the entry of any aliens or any class of aliens into the United States would be detrimental to the
interests of the United States.” 8 U.S.C. § 1182(f). Section 212(f) does not, however, grant the
President the far-reaching authority the Executive Order suggests with regard to refugee
admissions. INA § 212(f) cannot be interpreted to conflict with INA § 207, because INA § 207
was enacted later than INA § 212(f) and specifically controls refugee admissions.
Following the well-settled “later in time” and “specific over general” canons of statutory
interpretation, INA § 207 should be given primacy over INA § 212(f). First, INA § 207 was
enacted many years after INA § 212(f). Section 212(f) appeared as INA § 212(e) in the
Immigration and Nationality Act of 1952. Immigration and Nationality Act, 66 Pub. L. No. 66-

3

For example, President Bill Clinton invoked INA § 207(b) to increase refugee admissions in response to a
humanitarian crisis in Europe. See Memorandum on Additional Refugee Admissions, 35 Weekly Comp. Pres. Doc.
1634 (Aug. 12, 1999) (citing INA § 207(b) as the basis for raising admissions for fiscal year 1999 from 78,000 to
91,000 in response to the need to resettle Kosovar refugees due to an “unforeseen refugee emergency” in Europe).

9

414, 66 Stat. 163 (1952). Twenty-eight years later, Congress enacted INA § 207 with the passage
of the Refugee Act. The Refugee Act of 1980, 96 Pub. L. No. 96-212, 94 Stat. 102 (1980). As
such, INA § 207 limits any applicability the older section may have with respect to refugee
admissions. U.S. v. Estate of Romani, 523 U.S. 517, 518 (1998) (“[A] specific policy embodied
in a later federal statute should control interpretation of the older federal priority statute, despite
that law’s literal, unconditional text and the fact that it had not been expressly amended by the
later.”); see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (quoting
U.S. v. Fausto, 484 U.S. 439, 453 (1988) (“The classic judicial task of reconciling many laws
enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the
implications of a statute may be altered by the implications of a later statute.”) (internal quotation
marks omitted)).
Second, the U.S. Supreme Court has made clear that, “[s]pecific terms prevail over the
general.” See Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228 (1957)
(“However inclusive may be the general language of a statute, it will not be held to apply to a
matter specifically dealt with in another part of the same enactment.” (internal citation and
quotation marks omitted)). Section 212(f) grants the President general authority to suspend entry
to the United States when such entry would be “detrimental to the interests of the United States.”
8 U.S.C. § 1182(f). Conversely, INA § 207 specifically addresses the question of determining the
number of refugees to be admitted in a given fiscal year and provides a detailed framework for
the administration of the refugee admission process. 8 U.S.C. § 1157.
In particular, INA § 207(e) provides an extensive description of the “appropriate
consultation” process, defining it as in-person discussions “by designated Cabinet-level
representatives of the President with members of the Committees on the Judiciary of the Senate

10

and of the House of Representatives” to review the refugee situation and project the level of U.S.
participation in resettlement efforts. 8 U.S.C. § 1157(e). At least two weeks prior to these
discussions, the President is required to provide information to Congress, to the extent possible,
regarding the numbers and regional allocation of refugees, conditions in refugees’ countries of
origin, plans for resettlement and movement of refugees as well as estimated costs, the socioeconomic and demographic impact of resettlement, the scope of refugee resettlement efforts
internationally, and the impact of U.S. resettlement efforts on U.S. foreign policy interests. 8
U.S.C. § 1157(e). Given these detailed and specific, more recently enacted provisions, the
President’s general authority under INA § 212(f) cannot be interpreted to conflict with INA §
207.

11

CONCLUSION
For the foregoing reasons, amicus curiae respectfully request that the Court enjoin § 5(d)
of the Executive Order.
Respectfully submitted,

Deborah Anker*
Sabrineh Ardalan*
Philip Torrey*
Nancy Kelly*
John Willshire Carrera*
Maggie Morgan*
HARVARD IMMIGRATION AND
REFUGEE CLINICAL PROGRAM+
6 Everett Street, WCC 3106
Cambridge, Massachusetts 02138
Phone: [phone]
[e-mail]

/s/
_
Donald Salzman (Bar #: 16501)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Avenue NW
Washington DC
Phone: [phone]
Fax: [phone]
[e-mail]
Counsel for Amicus Curiae

*Not admitted in this jurisdiction
Dated: March 2, 2017
Washington D.C.

+

The following Harvard Law School students contributed to the drafting of this brief: Mana Azarmi, Dalia Deak,
Christian Diederich, Jin Kim, Nathan MacKenzie, James Pollack, Brianna Rennix, and Amy Volz.

12

CERTIFICATE OF SERVICE
I hereby certify that on March 2, 2017 I caused a PDF version of the foregoing BRIEF
FOR AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM
IN SUPPORT OF THE PLAINTIFFS to be electronically transmitted via the Court’s CM/ECF
system for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants.

/s/
Donald P. Salzman (Bar #: 16501)