(1 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 1 of 19 No. 17-35105 ___________________________________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ___________________________________________ STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v. DONALD TRUMP, President of the United States, et al., Defendant-Appellants. _____________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON ______________________________________________ MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE LAW PROFESSORS AND CLINICIANS IN SUPPORT OF PLAINTIFFS-APPELLEES ______________________________________________ Fatma E. Marouf Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu (2 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 2 of 19 Undersigned law professors and law school clinicians respectfully move this Court for permission to file a brief amici curiae opposing the motion to stay the Temporary Restraining Order (TRO) issued by the U.S. District Court for the Western District of Washington. In support of this motion, proposed amici state as follows: 1. All parties have consented to the filing of this amici brief. Under Fed. R. App. P. 29(a)(2), a motion for leave to file an amicus brief is not required when all parties have consent to its filing. However, since that Rule applies to cases being decided on the merits and this case involved an emergency motion to stay a TRO, proposed amici file this motion in an abundance of caution. 2. Proposed amici are law professors and clinicians at institutions of higher education who have personal, professional, and academic connections to students, researchers, faculty, and staff from all over the world. 3. Law professors and clinicians have had first-hand experience with international students and faculty who have sought their direct assistance with immigration issues resulting from the President’s Executive Order 13769 (EO). 4. Law school clinicians, in particular, have worked hard in a climate of sudden chaos and confusion to assist international students and faculty 1 (3 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 3 of 19 detained at airports and stranded abroad after participating in conferences, giving talks, or engaging in research. 5. We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings. 6. In addition, we have scrambled to assist numerous noncitizens not affiliated with universities who have similarly been adversely affected by the EO. 7. Proposed amici have first-hand knowledge of the irreparable harm that the EO inflicts on international students and researchers with nonimmigrant visas, which is one of the critical issues before the Court. 8. Many of proposed amici are also immigration scholars and clinicians with deep knowledge of immigration law and have collectively produced extensive scholarship about all aspects of immigration law, including the constitutional and statutory rights of nonimmigrants. They are therefore well-positioned to assess the likelihood of success on the merits, another important issue before the Court. 9. Proposed amici are vitally interested in protecting the rights of their students, colleagues, and clients, whose status in the United States is jeopardized by the EO. 2 (4 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 4 of 19 For the foregoing reasons, proposed amici respectfully request permission to file the proposed brief amici curiae in support of Plaintiffs-Appellees. DATED: February 5, 2017 Respectfully submitted, /s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu *All affiliations listed for identification purposes only. Nancy Abramowitz, American University Washington College of Law Kathryn Abrams, Berkeley Law John Acevedo, University of La Verne College of Law Cynthia Adams, Indiana University McKinney School of Law Deborah Ahrens, Seattle University School of Law Raquel Aldana, McGeorge School of Law Arléne Amarante, University of Nevada, Las Vegas School of Law Farrin Anello, Seton Hall University School of Law Deborah Anker, Harvard Immigration and Refugee Clinical Program, Harvard Law School Susan Appleton, Washington University School of Law 3 (5 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 5 of 19 Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University Sahar Aziz, Texas A&M University School of Law Sabrina Balgamwalla, University of North Dakota School of Law David Baluarte, Washington and Lee University School of Law Caitlin Barry, Villanova University Charles Widger School of Law Marsha Baum, University of New Mexico School of Law Jennifer Baum, St. Vincent de Paul Legal Program, St. John's University School of Law, Child Advocacy Clinic Galya Ben-Arieh Ruffer, Northwestern University, Center for Forced Migration Studies Emily Benfer, Loyola University Chicago School of Law Susan Bennett, American University Washington College of Law Lenni Benson, New York Law School Jacqueline Bhabha, Harvard University W. Warren H. Binford, Willamette University College of Law Kaci Bishop, The University of North Carolina School of Law Blaine Bookey, UC Hastings Center for Gender & Refugee Studies Cynthia Bowman, Cornell Law School Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law 4 (6 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 6 of 19 Susan Brooks, Drexel University Kline School of Law Melissa Brown, Pacific McGeorge School of Law Margaret Burnham, Northeastern University School of Law Charles Calleros, Arizona State University College of Law Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law Nancy Cantalupo, Barry University School of Law Lauren Carasik, Western New England University School of Law Elizabeth Carroll, USC Gould School of Law Benjamin Casper Sanchez, University of Minnesota Law School, Center for New Americans Linus Chan, University of Minnesota Law School Kim D. Chanbonpin, The John Marshall Law School Marguerite Chapman, University of Tulsa College of Law (Professor Emerita) Matthew Charity, Western New England University School of Law Carol Chomsky, University of Minnesota Law School Eric Christiansen, Golden Gate University School of Law Janie Chuang, American University Washington College of Law Beth Cohen, Western New England University School of Law Donna Coker, University of Miami School of Law Ruth Colker, Ohio State University Moritz College of Law 5 (7 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 7 of 19 Holly Cooper, UC Davis School of Law Immigration Law Clinic Avidan Cover, Case Western Reserve University School of Law Rachel Croskery-Roberts, University of California - Irvine School of Law Rose Cuison-Villazor, UC Davis School of Law Alina Das, New York University School of Law Immigrant Rights Clinic Julie Davies, University of the Pacific, McGeorge School of Law Angela Davis, American University Washington College of Law Amy Dillard, University of Baltimore School of Law Victoria Dodd, Suffolk University Law School Jennifer Drobac, Indiana University Robert H. McKinney School of Law Moira Duvernay, UC Hastings Center for Gender & Refugee Studies Maurice Dyson, Thomas Jefferson School of Law Pamela Edwards, CUNY School of Law Nancy Ehrenreich, University of Denver Sturm College of Law Floralynn Einesman, California Western School of Law Kathleen Engel-Rebitzer, Suffolk University Law School Kate Evans, University of Idaho College of Law Jessica Feinberg, Mercer Law School Zanita Fenton, University Miami School of Law Paul Finkelman, University of Pittsburgh School of Law 6 (8 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 8 of 19 Angelina Fisher, NYU School of Law Barbara Flagg, Washington University Law Laurel Fletcher, Berkeley Law Taylor Flynn, Western New England School of Law Caroline Forell, University of Oregon Law Jacqueline Fox, University of South Carolina School of Law Eric Franklin, William S.Boyd School of Law, UNLV Ann Freedman, Rutgers Law School Niels Frenzen, University of Southern California Gould School of Law Maryellen Fullerton, Brooklyn Law School Paula Galowitz, New York University School of Law Susan Gary, University of Oregon School of Law Lauren Gilbert, St. Thomas University School of Law Jason Gillmer, Gonzaga School of Law Denise Gilman, University of Texas School of Law Immigration Clinic Barbara Glesner Fines, University of Missouri Kansas City School of Law Phyllis Goldfarb, George Washington University Law School Ezra Goldschlager, University of La Verne College of Law Naomi Goodno, Pepperdine University School of Law Joanne Gottesman, Rutgers Law School 7 (9 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 9 of 19 Tiffany Graham, University of South Dakota School of Law Ariela Gross, University of Southern California, Gould School of Law Aya Gruber, University of Colorado Law School Anju Gupta, Rutgers Law School Immigrant Rights Clinic Egon Guttman, American University, Washington College of Law Gillian Hadfield, University of Southern California, Gould School of Law Rebecca Hamilton, American University, Washington College of Law Gail Hammer, Gonzaga University School of Law, University Legal Assistance Anna Han, Santa Clara Law School Jean Han, American University, Washington College of Law Jacqueline Hand, University of Detroit Mercy Law School Lindsay Harris, University of D.C. - David A. Clarke School of Law Keith M. Harrison, Savannah Law School Danielle Hart, Southwestern Law School Bruce Hay, Harvard Law School Dina Haynes, New England Law Boston Geoffrey Heeren, Valparaiso University Law School Jennifer Hendricks, University of Colorado Laura A. Hernandez, Baylor Law School Kathy Hessler, Lewis & Clark Law School 8 (10 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 10 of 19 Richard Hildreth, University of Oregon Law Bill Hing, Univ. of San Francisco Immigration and Deportation Defense Clinic Cynthia Ho, Loyola University of Chicago School of Law Sharona Hoffman, Case Western Reserve University School of Law Brooks Holland, Gonzaga University School of Law Mary Holper, Boston College Immigration Clinic Kari Hong, Boston College Law School, Ninth Circuit Appellate Program C. Quince Hopkins, Florida Coastal School of Law Emily Houh, University of Cincinnati College of Law Alan Hyde, Rutgers Law School Lisa Ikemoto, University of California, Davis School of Law Erin Jacobsen, Vermont Law School Sam Jacobson, Willamette University College of Law Regina Jefferies, University of Minnesota Law School Jamila Jefferson-Jones, University of Missouri - Kansas City Dalie Jimenez, University of Connecticut School of Law Paula Johnson, Syracuse University College of Law José (Beto) Juárez, University of Denver Sturm College of Law Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law Mary Kate Kearney, Widener Commonwealth Law School 9 (11 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 11 of 19 Christine Kellett, Dickinson Law/Penn State Kathryn Kelly, The Catholic University of America Laura Kessler, University of Utah, S.J. Quinney College of Law Elizabeth Keyes, University of Baltimore School of Law Kathleen Kim, Loyola Law School Catherine Kim, University of North Carolina School of Law Andrew Kim, Syracuse University College of Law Diane Klein, University of La Verne College of Law Eunice Lee, UC Hastings Center for Gender & Refugee Studies Jennifer Lee Koh, Western State College of Law Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis) Annie Lai, UC Irvine School of Law Prerna Lal, East Bay Community Law Center, Berkeley Law Laurie Leader Chicago-Kent College of Law, IIT Terri LeClercq, School of Law, Univeristy of Texas Evelyn Lewis, UCD Law Joellen Lind, Valparaiso University Law School Jeffrey Lubbers, American University, Washington College of Law Beth Lyon, Cornell Law School Elizabeth MacDowell, William S.Boyd School of Law, UNLV 10 (12 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 12 of 19 Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law Randi Mandelbaum, Rutgers Law School Susan Mandiberg, Lewis & Clark Law School Genevieve Mann, Gonzaga University School of Law Lynn Marcus, Immigration Law Clinic, University of Arizona James E. Rogers College of Law Jennifer Martin, St. Thomas University School of Law Elena Marty-Nelson, NSU College of Law Julie Marzouk, Chapman University, Fowler School of Law Dayna Matthew, University of Colorado School of Law Elizabeth McCormick, University of Tulsa College of Law Kris McDaniek-Miccio, University of Denver Sturm College of Law Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative Amelia McGowan, Catholic Charities of Jackson, Mississippi Brian McGowan, Grambling State University Karla McKanders, University of Tennessee, College of Law Fiona McKenna, Golden Gate University School of Law Michelle McKinley, University of Oregon School of Law Mary Brigid McManamon, Delaware Law School 11 (13 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 13 of 19 Judith McMorrow, Boston College Law School Stephen Meili, University of Minnesota Law School Chi Mgbako, Fordham University School of Law Binny Miller, American University, Washington College of Law Elliott Milstein, American University Washington College of Law Sherizaan Minwalla, American University, Washington College of Law Behzad Mirhashem, UNH School of Law Jennifer Moore, University of New Mexico School of Law Nancy Morawetz, NYU School of Law Kathleen Morris, Golden Gate Law School Mary-Beth Moylan, University of the Pacific, McGeorge School of Law Professor Ann Murphy, Gonzaga University School of Law Yxta Maya, Murray Loyola Law School Karen Musalo, UC Hastings Center for Gender & Refugee Studies Natalie Nanasi, SMU Dedman School of Law Jason Neidleman, University of La Verne Nise Nekheba, Florida A&M University College Of Law Lori Nessel, Seton Hall University School of Law Xuan-Thao Nguyen, Indiana University McKinney School of Law Fionnuala Ni Aolain, University of Minnesota, Human Rights Center 12 (14 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 14 of 19 Blake Nordahl, McGeorge Law School Immigration Law Clinic Tracy Norton, Touro College Jacob F. Fuchsberg School of Law Kenneth Nunn, University of Florida College of Law Udoka Nwanna Southwestern Law School Mariela Olivares, Howard University School of Law Michael A. Olivas, University of Houston Law Center Laura Oren, University of Houston Law Center Maria Pabon, Loyola New Orleans College of Law Victoria Palacios, SMU Dedman Law School Sunita Patel, American University Washington College of Law Carole Petersen, William S. Richardson School of Law Huyen Pham, Texas A&M University School of Law Teresa Phelps, American University Washington College of Law Karen Pita Loor, Boston University Law School Nancy Polikoff, American University Washington College of Law Andrew Pollis, Case Western Reserve University School of Law Deborah Post, Touro Law Center Ana Pottratz Acosta, Mitchell Hamline School of Law Cynthia Prado-Guyer, University of Southern California Lynne Rambo Texas A&M University School of Law 13 (15 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 15 of 19 Jaya Ramji-Nogales, Temple University Beasley School of Law Andrea Ramos Southwestern Law School Immigration Law Clinic Vernellia Randall, The University of Dayton School of Law Renee Redman, University of Connecticut School of LAw Nikki Reisch, NYU School of Law Paula R. Rhodes, University of Denver Sturm College of Law Ira Robbins, American University Washington College of Law Kalyani Robbins, FIU College of Law Jenny Roberts, American University, Washington College of Law Cassandra Burke Robertson, Case Western Reserve Univ. School of Law Eloisa Rodriguez-Dod, FIU College of Law Sarah Rogerson, Albany Law School Michael Rooke-Ley, Nova Southeastern University College of Law Leslie Rose, Golden Gate University School of Law Rand Rosenblatt, Rutgers University Law School Florence Rousman, Indiana U. Robert H. McKinney School of Law Judith Royster, University of Tulsa College of Law Rubén G. Rumbaut, University of California, Irvine Kevin Ruser, University of Nebraska College of Law Margaret Russell, Santa Clara University 14 (16 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 16 of 19 C. Mario Russell, Catholic Charities NY, St. John's Law School Emily Ryo, USC Gould School of Law Jendayi Saada, Unversity of La Verne College of Law Laura Sager, New York University School of Law Richard Sander, UCLA School of Law Margaret Satterthwaite, NYU School of Law Irene Scharf, Univ of Massachusetts School of Law Erica Schommer, St. Mary's University School of Law Sean Scott, Loyola Law School Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley Rachel Settlage, Wayne State Law School Sudha Setty, Western New England University School of Law Ragini Shah, Suffolk University Rebecca Sharpless, University of Miami School of Law Anette Sikka, University of Illinois Springfield Marjorie Silver, Touro Law Center Anita Sinha, American University Washington College of Law Matiangai Sirleaf, University of Pittsburgh Law School Gwynne Skinner, Willamette University College of Law Catherine Smith, University of Denver Sturm College of Law 15 (17 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 17 of 19 William Snape, American University, Washington college of law Gemma Solimene, Fordham University School of Law Mary Spector, SMU Dedman School of Law Jane Spinak, Columbia Law School Elissa Steglich, University of Texas School of Law, Immigration Clinic Nomi Stolzenberg, University of Southern California Law School Christopher Strawn, Immigration Law Clinic, Univ. of Washington School of Law Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic S.I., Strong University of Missouri Ellen Suni, UMKC School of Law Maureen Sweeney, University of Maryland Carey School of Law Chantal Thomas, Cornell University Law School Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School Michael Tigar, Washington College of Law Karen Tokarz, Washington University Civil Rights & Community Justice Clinic Mary Pat Treuthart, Gonzaga University School of Law Enid Trucios-Haynes, Brandeis School of Law, University of Louisville Tracy Turner, Southwestern Law School Diane Uchimiya, Justice and Immigration Clinic, Univ. of La Verne College of Law 16 (18 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 18 of 19 Gloria Valencia-Weber, University of New Mexico School of Law Rachel Van Cleave, Golden Gate University School of Law Anthony Varona, American University Washington College of Law Lea B. Vaughn, University of Washington School of Law Kyle Velte, Texas Tech University School of Law Leti Volpp, Berkeley Law Julie Waterstone, Southwestern Law School Susan C. Wawrose, University of Dayton School of Law Jonathan Weinberg, Wayne State University Marley Weiss, University of Maryland Carey School of Law Marley Weiss, University of Maryland Carey School of Law Deborah Weissman, University of North Carolina Anna Welch, University of Maine School of Law Verna Williams, University of Cincinnati College of Law Wendy Williams, Georgetown Law Abby Wood, University of Southern California Gould School of Law Barbara Woodhouse, Emory Law School Karen Woody, Indiana University, Kelley School of Business Marcia Zug, University of South Carolina 17 (19 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-1, Page 19 of 19 CERTIFICATE OF SERVICE I hereby certify that on February 5, 2017, I electronically filed the foregoing with the Clerk of the court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: February 5, 2017 Respectfully submitted, /s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu 18 (20 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 1 of 35 No. 17-35105 ___________________________________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ___________________________________________ STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v. DONALD TRUMP, President of the United States, et al., Defendant-Appellants. _____________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON ______________________________________________ BRIEF OF AMICI CURIAE LAW PROFESSORS AND CLINICIANS SUPPORTING PLAINTIFFS-APPELLEES ______________________________________________ FATMA E. MAROUF Professor of Law Director, Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu (21 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 2 of 35 TABLE OF CONTENTS STATEMENT OF INTEREST.…...…………………………………………..…...1 INTRODUCTION………………………………………………………………….1 ARGUMENT………………………………………………………………….........2 I. THE EO INFLICTS IRREPARABLE HARM ON INTERNATIONAL STUDENTS AND RESEARCHERS…………..2 II. PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON THE MERITS………………………………………………………...5 A. The EO Violates Due Process Rights of Nonimmigrants……...6 B. The EO Violates the Immigration and Nationality Act and Administrative Procedure Act…………………………………9 CONCLUSION…………………………………………………………………...12 i (22 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 3 of 35 TABLE OF AUTHORITIES U.S. Federal Cases All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)……………………………………………….6 Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2012)……………………………………………….8 Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)……………………………………………..11 Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009)………………………………………………….6 Felkner v. Jackson, 562 U.S. 594 (2011)…………………………………………………………8 Fiallo v. Bell, 430 U.S. 787, 807 (1977).…………………………………………………...8 Franklin v. MA, 505 U.S. 788 (1992)………………………………………………….…….11 Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006).……………………………………………….8 Kerry v. Din, 135 S.Ct. 2128 (2015)……………………………………………………….7 Kleindienst v. Mandel, 408 U.S. 753 (1972)……………………………………………………….7-8 Louhghalam v. Trump, Civ. 17-10154-NMG (Feb. 3, 2017) ………………………………………...6 ii (23 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 4 of 35 Public Citizen v. United States Trade Representative, 5 F.3d 549 (D.C. Cir. 1993).……………………….………………………11 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ………………………………………………6 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)……………………………………………………………6 Title 8 of United States Code (Immigration and Nationality Act) 8 U.S.C. § 1152(a)(1)(A)……………………………………………………...10-11 8 U.S.C. § 1184(a) ……………………………………………………..………9, 11 8 U.S.C. § 1201(c)(2) …………………………………………………………….10 8 U.S.C. § 1201(h) ……………………………………………………………….10 8 U.S.C. § 1201(i) …………………………………………………………………3 8 U.S.C. § 1227(a)(1)(B) ………………………………………………………….2 8 U.S.C. § 1182(f) ………………………………………………………………..11 Title 5 of U.S. Code (Administrative Procedure Act) 5 U.S.C. § 706(2)(A) ……………………………………………………….…….11 5 U.S.C. § 706(2)(C) …………………………………………………………….11 5 U.S.C. § 706(2)(D) …………………………………………………………….11 Secondary Sources Association of Public Land-Grand Universities, Public Universities Respond to New Immigration Executive Order (including statements from 140 public universities expressing concerns about the ban), iii (24 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 5 of 35 http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html (lasted visited Feb. 5, 2017)……………………………………4 Noah Bierman, Donald Trump’s Muslim ban was removed from the Website, but it’s back,” LOS ANGELES TIMES, Nov. 10, 2016, http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html (lasted visited Feb. 5, 2017)………………………………………………………………………9 College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/howtrumps-travel-ban-affects-thousands-of-international-students (lasted visited Feb. 5, 2017)…………………………………………………………………………...4-5 International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihecdjc.blogspot.com/2017/01/running-list-of-universitycollege-and.html (last visited Feb. 5, 2017)………………………………………………………………………..4 Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissent-memo/ (last visited Feb. 5, 2017)…………………………………………………………10 Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences (last visited Feb. 5, 2017)…………5 Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’, THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally (last visited Feb. 5, 2017)………………………………………………………………………………..9 iv (25 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 6 of 35 Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html (last visited Feb. 5, 2017)…………………………………………….10 Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (last visited Feb. 5, 2017)………………………………………………………………………..9 U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001(last visited Feb. 5, 2017)…………………………………….2-3 U.S. Department of State, Bureau of Consular Affairs, Important Announcement, Executive Order on Visas, https://travel.state.gov/content/travel/en/news/important-announcement.html (last visited Feb. 5, 2017)………………………………………………………………..3 v (26 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 7 of 35 STATEMENT OF INTEREST Amici are law professors and clinicians at institutions of higher education. Amici have personal, professional, and academic connections to students, researchers, faculty, and staff from all over the world. Many amici teach law school clinics and have had first-hand experience with international students, faculty, and clients who have sought their direct assistance with immigration issues resulting from the President’s recent Executive Order (EO). As law professors and clinicians, we have worked hard in a climate of chaos and confusion to assist international students and faculty detained at airports and stranded abroad after participating in conferences, giving talks, or engaging in research. We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings. In addition, we have scrambled to assist numerous noncitizens not affiliated with universities who have similarly been affected by the EO. Amici submit this brief under Fed. R. App. P. 29, Circuit Rule 29(a)(2). All parties have consented to the submission of amici briefs in this case. INTRODUCTION The Ninth Circuit should deny the motion for an emergency stay of the temporary restraining order (TRO) issued by the U.S. District Court for the Western District of Washington. The EO issued on January 27, 2017 creates a 1 (27 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 8 of 35 serious risk of irreparable harm to our clients, students, and colleagues who have nonimmigrant (temporary) visas at United States universities. In addition, Plaintiffs-Appellees are likely to succeed on the merits of their constitutional and statutory claims. ARGUMENT I. THE EO INFLICTS IRREPARABLE HARM ON INTERNATIONAL STUDENTS AND RESEARCHERS. On January 31, 2017, the U.S. Department of Justice released a State Department notice dated January 27, 2017, “provisionally revok[ing] all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen,” subject to narrow exceptions for diplomatic visas and case-by-case determinations made in the national interest.1 This revocation of visas made everyone with nonimmigrant visas from the seven countries, even those within the United States, potentially deportable under 8 U.S.C. § 1227(a)(1)(B), which provides: “Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other U.S. Department of State, letter dated Jan. 27, 2017 (released by U.S. Department of Justice on Jan. 31, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173a959-ffff671a0001. 1 2 (28 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 9 of 35 documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.” (Emphasis added).2 On or about February 4, 2017, the State Department issued an announcement confirming that it had, “under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries, with limited exceptions.”3 (Emphasis added). In light of the TRO issued by the U.S. District Court for the Western District of Washington, however, the State Department lifted the provisional revocation. Id. The nationwide TRO currently protects thousands of international students and researchers in the United States. If the order is reversed, students and researchers will suffer irreparable harm, namely the inability to travel outside the United States and a fear that they may fall out of legal status and suffer deportation. They would be unable to leave the country to attend international symposia or conferences, engage in overseas field research, collaborate with colleagues in other countries, or visit their families without encountering impediments to their return. The State Department invoked its authority under 8 U.S.C. § 1201(i), INA § 221(i), in its letter dated Jan. 27, 2017. See supra note 1. 3 U.S. Department of State, Bureau of Consular Affairs, Important Announcement, Executive Order on Visas, https://travel.state.gov/content/travel/en/news/important-announcement.html. 2 3 (29 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 10 of 35 According to data collected from the Department of Homeland Security by College Factual, a higher education data analytics and research company, there were 23,763 students with F-1 and M-1 student visas at 596 universities in the United States affected by the travel ban.4 Since this number only includes students, not faculty, it actually underestimates the true number of individuals who are affected and who may be subjected to deportation if their nonimmigrant visas expired. Post-docs, medical residents, and faculty often work at United States universities with other types of nonimmigrant visas, such as J-1 visas for exchange visitors and H-1 visas for temporary workers. Students’ and researchers’ concerns are consistent with those expressed by numerous American universities.5 The students and researchers we work with and represent provide critical, diverse viewpoints to university life. Their experiences College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S., Jan. 31, 2017, http://inside.collegefactual.com/blog/how-trumps-travel-ban-affects-thousands-ofinternational-students. 5 See Appendix A (list of hundreds of institutions of higher education that have expressed concerns about the EO); Association of Public Land-Grand Universities, Public Universities Respond to New Immigration Executive Order (including statements from 140 public universities expressing concerns about the ban), http://www.aplu.org/members/councils/strategic-communications/immigrationactions/index.html; International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump’s Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” Jan. 27. 2017, http://ihec-djc.blogspot.com/2017/01/running-list-of-universitycollege-and.html. 4 4 (30 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 11 of 35 and perspectives enrich our understanding of new problems to be solved, and help identify original solutions to those problems. Shortly after the EO was announced, over 3,000 international scholars signed a petition to “boycott international academic conferences held in the United States in solidarity with those affected by” the EO. 6 Not only does this suppress intellectual activity and collaboration, but it also inflicts substantial financial harm. Furthermore, if international students from the seven banned countries are no longer able to attend school in the U.S., either because they are denied entry to the country or their visas expire, our universities stand to lose hundreds of millions of dollars.7 These financial losses, which would affect our programs, including our law school clinics, could be even greater if the ban also discourages students who are citizens of other Muslim-majority countries from studying in the United States. II. PLAINTIFFS-APPELLEES ARE LIKELY TO SUCCEED ON THE MERITS Unlike the First Circuit, the Ninth Circuit has never placed special emphasis on the “likelihood of success” factor, resulting in a different legal standard here than was applied in the Massachusetts case. See Exh. B to Emergency Motion for Stay (Louhghalam v. Trump, Civ. 17-10154-NMG, Order at 20 (Feb. 3, 2017)) Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-are-boycotting-us-based-conferences. 7 See College Factual, supra note 4 (estimating that revocation of student visas at 596 schools would result in losses of $700 million). 6 5 (31 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 12 of 35 (citing Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009) (holding that the likelihood of success factor weighs most heavily in the decision). Here, the District Court judge correctly relied on Ninth Circuit precedents that consider all four factors using a sliding scale. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). A. The EO Violates Due Process Rights of Nonimmigrants Nonimmigrants who have been granted visas and are already living in the United States have due process rights to stay here; those who are abroad have a due process interest in proper adjudication of their rights to be in the United States. U.S. Const. amend. V. The EO affects not only nonimmigrants who are seeking entry for the first time, but also those who have established ties to the United States, including students and faculty who we have assisted in the past weeks as they grapple with the EO's impact. The EO inflicted irreparable harm on nonimmigrants within the United States who suddenly lost their ability to travel, had their visas revoked, and thereby feared deportation. Many of these students and faculty members have already been in the United States for years, are in the middle of degree programs, and have made significant intellectual contributions to the United States. They should receive due process protections commensurate with 6 (32 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 13 of 35 their substantial ties to the United States. This Court need not determine the precise contours of the process due to nonimmigrants living in the United States (or those abroad) in deciding this appeal. It need only find a likelihood of success in showing that the process received by these nonimmigrants – which involved no notice, no opportunity to respond, and no individualized analysis of risk to national security – was insufficient. Even if the Court applies the “facially legitimate and bona fide” standard that has been applied to individuals seeking admission, the EO fails to satisfy that test. While national security may, in some cases, be a facially legitimate reason, it is not legitimate when applied without any individualized analysis to entire nations. Cf. Kleindienst v. Mandel, 408 U.S. 753, 769 (1982) (finding a “facially legitimate and bona fide” reason for the denial of visa to an individual who had violated the conditions of his visa on two prior trips); Kerry v. Din, 135 S.Ct. 2128, 2140 (2015) (finding a “facially legitimate and bone fide” reason for the denial of a visa to an Afghan national who had previously been employed by the Taliban). Neither the Supreme Court nor the Ninth Circuit has ever held that national origin, religion, or race alone constitutes a “facially legitimate and bona fide reason.” The overbreadth of the EO reflects the type of “unfettered discretion” that the Supreme Court has explicitly rejected. See Kleindienst, 408 U.S. at 762; Fiallo v. Bell, 430 U.S. 787, 807 (1977). 7 (33 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 14 of 35 Furthermore, even if national security provides a facially legitimate reason for the EO, it is not a bona fide reason for the ban on all individuals from seven Muslim-majority countries. As previously recognized by this Court, the “facially legitimate” and “bona fide” prongs of the test are distinct. See Bustamante v. Mukasey, 531 F.3d 1059, 1062-1063 (9th Cir. 2012) (examining the “bona fide” prong separately). The “bona fide” part of the test requires a court to distinguish between good faith reasons and pretextual excuses. In other contexts, appellate courts have given great deference to trial courts’ determinations of whether the government’s explanation is bona fide. See Kesser v. Cambra, 465 F.3d 351, 356 (9th Cir. 2006) (noting that the court of appeal gave “great deference to the trial court in distinguishing bona fide reasons from sham excuses”); Felkner v. Jackson, 562 U.S. 594, 596 (2011) (same). Here, there is substantial evidence that the ban was motivated by animus against Muslims. For example, on January 28, 2017, a week after the inauguration, Former New York City Mayor Rudy Giuliani stated in an interview that President Trump had previously asked him about legally implementing a “Muslim ban.” 8 Indeed, for nearly a year preceding the election, President Trump’s campaign 8Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally’, THE HILL, Jan. 28, 2017, http://thehill.com/homenews/administration/316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally. 8 (34 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 15 of 35 website referred to a “Muslim ban,” indicating discriminatory intent.9 The evidence that there was no bona fide reason for the ban will be developed further through discovery. In the interim, however, the TRO should remain in place to prevent irreparable harm to nonimmigrants. B. The EO Violates the Immigration and Nationality Act and the Administrative Procedure Act The INA provides the procedure due to arriving nonimmigrants with valid nonimmigrant visas. The EO violates those procedures in three ways. First, the statute requires that the procedure for admission be set through regulation. 8 U.S.C. § 1184(a) (“The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe[.]”). The EO was not promulgated as a regulation. It never went through the public notice and comment procedures that help ensure transparent, deliberate, well-reasoned policies under § 553 of the Administrative Procedure Act (APA). In fact, the EO was never even vetted by key agency officials or career diplomats with relevant expertise, hundreds of whom Bierman, Donald Trump’s Muslim ban was removed from the Website, but it’s back,” LOS ANGELES TIMES, Nov. 10, 2016, http://www.latimes.com/nation/politics/trailguide/la-na-updates-trail-guide-sowhat-s-the-deal-with-donald-trump-s-1478812963-htmlstory.html; see also Press Release, Trump-Pence Campaign, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration. 9Noah 9 (35 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 16 of 35 have since explicitly voiced their opposition to the EO, including the former Acting Attorney General, Sally Yates, who refused to defend the ban.10 The failure to use a transparent process also contributed to the chaos and confusion that ensued after the EO was suddenly issued. Second, the statute requires that a nonimmigrant visa “shall be valid for the period the regulations proscribe.” Id. § 1201(c)(2). However, the EO effectively invalidated the visas for travel purposes. Third, the INA denies admission to nonimmigrants only when they are inadmissible under the INA or “any other provision of law.” 8 U.S.C. § 1201(h). The EO denies admission to all visa holders from the seven countries regardless of admissibility. In addition, with respect to immigrant visas, the INA prohibits discrimination in admissions based on nationality. 8 U.S.C. § 1152(a)(1)(A). Congress enacted the nondiscriminatory provision after 8 U.S.C. § 1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The provision allowing suspension of entry of See Elisa Labott, Over 900 US Career diplomats protest Trump Order, CNN, Jan. 31, 2017, http://www.cnn.com/2017/01/30/politics/career-diplomats-dissentmemo/; Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Acting Attorney General Who Defies Him, NEW YORK TIMES, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-banmemo.html. 10 10 (36 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 17 of 35 classes of aliens is therefore subject to the nondiscrimination requirement in 8 U.S.C. § 1152(a)(1)(A). Furthermore, the President’s authority under 8 U.S.C. § 1182(f) should not be interpreted to undermine the requirement that the procedures for nonimmigrant admission be set through regulation. 8 U.S.C. § 1184(a). By violating the plain language of the INA, the EO is also arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in violation of APA § 706(2)(C); and without observance of procedure required by law, in violation of § 706(2)(D). Although the President is not an “agency” under the APA, Franklin v. MA, 505 U.S. 788, 797 (1992), an agency’s implementation of presidential directives must still conform to the APA. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (“that the Secretary’s regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.); Public Citizen v. United States Trade Representative, 5 F.3d 549, 552 (D.C. Cir. 1993) (noting that the denial of judicial review over presidential actions “is limited to those cases in which the President has constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties). Where, as here, immigration decisions require action by administrative 11 (37 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 18 of 35 officials, courts routinely apply the APA and administrative law doctrines. CONCLUSION In order to protect the constitutional and statutory rights of nonimmigrants and prevent irreparable harm to our colleagues and clients -- students and faculty with nonimmigrant visas -- the Court should deny the motion to stay or vacate the TRO issued by the U.S. District Court for the Western District of Washington. The TRO should remain in place as parties conduct discovery and the trial court holds an evidentiary hearing. DATED: February 5, 2017 Respectfully submitted, By: /s Fatma Marouf Fatma E. Marouf, Esq. Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu *All affiliations listed for identification purposes only. Nancy Abramowitz, American University Washington College of Law Kathryn Abrams, Berkeley Law John Acevedo, University of La Verne College of Law Cynthia Adams, Indiana University McKinney School of Law 12 (38 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 19 of 35 Deborah Ahrens, Seattle University School of Law Raquel Aldana, McGeorge School of Law Arléne Amarante, University of Nevada, Las Vegas School of Law Farrin Anello, Seton Hall University School of Law Deborah Anker, Harvard Immigration and Refugee Clinical Program, Harvard Law School Susan Appleton, Washington University School of Law Sabrineh Ardalan, Harvard Immigration and Refugee Clinical Program Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University Sahar Aziz, Texas A&M University School of Law Sabrina Balgamwalla, University of North Dakota School of Law David Baluarte, Washington and Lee University School of Law Caitlin Barry, Villanova University Charles Widger School of Law Marsha Baum, University of New Mexico School of Law Jennifer Baum, St. Vincent de Paul Legal Program, St. John's University School of Law, Child Advocacy Clinic Galya Ben-Arieh Ruffer, Northwestern University, Center for Forced Migration Studies Emily Benfer, Loyola University Chicago School of Law Susan Bennett, American University Washington College of Law 13 (39 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 20 of 35 Lenni Benson, New York Law School Jacqueline Bhabha, Harvard University W. Warren H. Binford, Willamette University College of Law Kaci Bishop, The University of North Carolina School of Law Blaine Bookey, UC Hastings Center for Gender & Refugee Studies Cynthia Bowman, Cornell Law School Shawn Marie Boyne, Indiana University Robert H. McKinney School of Law Susan Brooks, Drexel University Kline School of Law Melissa Brown, Pacific McGeorge School of Law Margaret Burnham, Northeastern University School of Law Charles Calleros, Arizona State University College of Law Kristina Campbell, Univ. of District of Columbia David A. Clarke School of Law Nancy Cantalupo, Barry University School of Law Lauren Carasik, Western New England University School of Law Elizabeth Carroll, USC Gould School of Law Benjamin Casper Sanchez, University of Minnesota Law School, Center for New Americans Linus Chan, University of Minnesota Law School Kim D. Chanbonpin, The John Marshall Law School Marguerite Chapman, University of Tulsa College of Law (Professor Emerita) 14 (40 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 21 of 35 Matthew Charity, Western New England University School of Law Carol Chomsky, University of Minnesota Law School Eric Christiansen, Golden Gate University School of Law Janie Chuang, American University Washington College of Law Beth Cohen, Western New England University School of Law Donna Coker, University of Miami School of Law Ruth Colker, Ohio State University Moritz College of Law Holly Cooper, UC Davis School of Law Immigration Law Clinic Avidan Cover, Case Western Reserve University School of Law Rachel Croskery-Roberts, University of California - Irvine School of Law Rose Cuison-Villazor, UC Davis School of Law Alina Das, New York University School of Law Immigrant Rights Clinic Julie Davies, University of the Pacific, McGeorge School of Law Angela Davis, American University Washington College of Law Amy Dillard, University of Baltimore School of Law Victoria Dodd, Suffolk University Law School Jennifer Drobac, Indiana University Robert H. McKinney School of Law Moira Duvernay, UC Hastings Center for Gender & Refugee Studies Maurice Dyson, Thomas Jefferson School of Law Pamela Edwards, CUNY School of Law 15 (41 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 22 of 35 Nancy Ehrenreich, University of Denver Sturm College of Law Floralynn Einesman, California Western School of Law Kathleen Engel-Rebitzer, Suffolk University Law School Kate Evans, University of Idaho College of Law Jessica Feinberg, Mercer Law School Zanita Fenton, University Miami School of Law Paul Finkelman, University of Pittsburgh School of Law Angelina Fisher, NYU School of Law Barbara Flagg, Washington University Law Laurel Fletcher, Berkeley Law Taylor Flynn, Western New England School of Law Caroline Forell, University of Oregon Law Jacqueline Fox, University of South Carolina School of Law Eric Franklin, William S.Boyd School of Law, UNLV Ann Freedman, Rutgers Law School Niels Frenzen, University of Southern California Gould School of Law Maryellen Fullerton, Brooklyn Law School Paula Galowitz, New York University School of Law Susan Gary, University of Oregon School of Law Lauren Gilbert, St. Thomas University School of Law 16 (42 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 23 of 35 Jason Gillmer, Gonzaga School of Law Denise Gilman, University of Texas School of Law Immigration Clinic Barbara Glesner Fines, University of Missouri Kansas City School of Law Phyllis Goldfarb, George Washington University Law School Ezra Goldschlager, University of La Verne College of Law Naomi Goodno, Pepperdine University School of Law Joanne Gottesman, Rutgers Law School Tiffany Graham, University of South Dakota School of Law Ariela Gross, University of Southern California, Gould School of Law Aya Gruber, University of Colorado Law School Anju Gupta, Rutgers Law School Immigrant Rights Clinic Egon Guttman, American University, Washington College of Law Gillian Hadfield, University of Southern California, Gould School of Law Rebecca Hamilton, American University, Washington College of Law Gail Hammer, Gonzaga University School of Law, University Legal Assistance Anna Han, Santa Clara Law School Jean Han, American University, Washington College of Law Jacqueline Hand, University of Detroit Mercy Law School Lindsay Harris, University of D.C. - David A. Clarke School of Law Keith M. Harrison, Savannah Law School 17 (43 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 24 of 35 Danielle Hart, Southwestern Law School Bruce Hay, Harvard Law School Dina Haynes, New England Law Boston Geoffrey Heeren, Valparaiso University Law School Jennifer Hendricks, University of Colorado Laura A. Hernandez, Baylor Law School Kathy Hessler, Lewis & Clark Law School Richard Hildreth, University of Oregon Law Bill Hing, Univ. of San Francisco Immigration and Deportation Defense Clinic Cynthia Ho, Loyola University of Chicago School of Law Sharona Hoffman, Case Western Reserve University School of Law Brooks Holland, Gonzaga University School of Law Mary Holper, Boston College Immigration Clinic Kari Hong, Boston College Law School, Ninth Circuit Appellate Program C. Quince Hopkins, Florida Coastal School of Law Emily Houh, University of Cincinnati College of Law Alan Hyde, Rutgers Law School Lisa Ikemoto, University of California, Davis School of Law Erin Jacobsen, Vermont Law School Sam Jacobson, Willamette University College of Law 18 (44 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 25 of 35 Regina Jefferies, University of Minnesota Law School Jamila Jefferson-Jones, University of Missouri - Kansas City Dalie Jimenez, University of Connecticut School of Law Paula Johnson, Syracuse University College of Law José (Beto) Juárez, University of Denver Sturm College of Law Doron Kalir, Civil Litigation Clinic, Cleveland Marshall College of Law Mary Kate Kearney, Widener Commonwealth Law School Christine Kellett, Dickinson Law/Penn State Kathryn Kelly, The Catholic University of America Laura Kessler, University of Utah, S.J. Quinney College of Law Elizabeth Keyes, University of Baltimore School of Law Kathleen Kim, Loyola Law School Catherine Kim, University of North Carolina School of Law Andrew Kim, Syracuse University College of Law Diane Klein, University of La Verne College of Law Eunice Lee, UC Hastings Center for Gender & Refugee Studies Jennifer Lee Koh, Western State College of Law Daniel M. Kowalski, Bender's Immigration Bulletin (LexisNexis) Annie Lai, UC Irvine School of Law Prerna Lal, East Bay Community Law Center, Berkeley Law 19 (45 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 26 of 35 Laurie Leader Chicago-Kent College of Law, IIT Terri LeClercq, School of Law, Univeristy of Texas Evelyn Lewis, UCD Law Joellen Lind, Valparaiso University Law School Jeffrey Lubbers, American University, Washington College of Law Beth Lyon, Cornell Law School Elizabeth MacDowell, William S.Boyd School of Law, UNLV Luis Mancheno, Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law Randi Mandelbaum, Rutgers Law School Susan Mandiberg, Lewis & Clark Law School Genevieve Mann, Gonzaga University School of Law Lynn Marcus, Immigration Law Clinic, University of Arizona James E. Rogers College of Law Jennifer Martin, St. Thomas University School of Law Elena Marty-Nelson, NSU College of Law Julie Marzouk, Chapman University, Fowler School of Law Dayna Matthew, University of Colorado School of Law Elizabeth McCormick, University of Tulsa College of Law Kris McDaniek-Miccio, University of Denver Sturm College of Law 20 (46 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 27 of 35 Janis McDonald, Professor of Law & Co-Director Cold Case Justice Initiative Amelia McGowan, Catholic Charities of Jackson, Mississippi Brian McGowan, Grambling State University Karla McKanders, University of Tennessee, College of Law Fiona McKenna, Golden Gate University School of Law Michelle McKinley, University of Oregon School of Law Mary Brigid McManamon, Delaware Law School Judith McMorrow, Boston College Law School Stephen Meili, University of Minnesota Law School Chi Mgbako, Fordham University School of Law Binny Miller, American University, Washington College of Law Elliott Milstein, American University Washington College of Law Sherizaan Minwalla, American University, Washington College of Law Behzad Mirhashem, UNH School of Law Jennifer Moore, University of New Mexico School of Law Nancy Morawetz, NYU School of Law Kathleen Morris, Golden Gate Law School Mary-Beth Moylan, University of the Pacific, McGeorge School of Law Professor Ann Murphy, Gonzaga University School of Law Yxta Maya, Murray Loyola Law School 21 (47 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 28 of 35 Karen Musalo, UC Hastings Center for Gender & Refugee Studies Natalie Nanasi, SMU Dedman School of Law Jason Neidleman, University of La Verne Nise Nekheba, Florida A&M University College Of Law Lori Nessel, Seton Hall University School of Law Xuan-Thao Nguyen, Indiana University McKinney School of Law Fionnuala Ni Aolain, University of Minnesota, Human Rights Center Blake Nordahl, McGeorge Law School Immigration Law Clinic Tracy Norton, Touro College Jacob F. Fuchsberg School of Law Kenneth Nunn, University of Florida College of Law Udoka Nwanna Southwestern Law School Mariela Olivares, Howard University School of Law Michael A. Olivas, University of Houston Law Center Laura Oren, University of Houston Law Center Maria Pabon, Loyola New Orleans College of Law Victoria Palacios, SMU Dedman Law School Sunita Patel, American University Washington College of Law Carole Petersen, William S. Richardson School of Law Huyen Pham, Texas A&M University School of Law Teresa Phelps, American University Washington College of Law 22 (48 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 29 of 35 Karen Pita Loor, Boston University Law School Nancy Polikoff, American University Washington College of Law Andrew Pollis, Case Western Reserve University School of Law Deborah Post, Touro Law Center Ana Pottratz Acosta, Mitchell Hamline School of Law Cynthia Prado-Guyer, University of Southern California Lynne Rambo Texas A&M University School of Law Jaya Ramji-Nogales, Temple University Beasley School of Law Andrea Ramos Southwestern Law School Immigration Law Clinic Vernellia Randall, The University of Dayton School of Law Renee Redman, University of Connecticut School of LAw Nikki Reisch, NYU School of Law Paula R. Rhodes, University of Denver Sturm College of Law Ira Robbins, American University Washington College of Law Kalyani Robbins, FIU College of Law Jenny Roberts, American University, Washington College of Law Cassandra Burke Robertson, Case Western Reserve Univ. School of Law Eloisa Rodriguez-Dod, FIU College of Law Sarah Rogerson, Albany Law School Michael Rooke-Ley, Nova Southeastern University College of Law 23 (49 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 30 of 35 Leslie Rose, Golden Gate University School of Law Rand Rosenblatt, Rutgers University Law School Florence Rousman, Indiana U. Robert H. McKinney School of Law Judith Royster, University of Tulsa College of Law Rubén G. Rumbaut, University of California, Irvine Kevin Ruser, University of Nebraska College of Law Margaret Russell, Santa Clara University C. Mario Russell, Catholic Charities NY, St. John's Law School Emily Ryo, USC Gould School of Law Jendayi Saada, Unversity of La Verne College of Law Laura Sager, New York University School of Law Richard Sander, UCLA School of Law Margaret Satterthwaite, NYU School of Law Irene Scharf, Univ of Massachusetts School of Law Erica Schommer, St. Mary's University School of Law Sean Scott, Loyola Law School Kim Thuy Seelinger, Human Rights Center, University of California, Berkeley Rachel Settlage, Wayne State Law School Sudha Setty, Western New England University School of Law Ragini Shah, Suffolk University 24 (50 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 31 of 35 Rebecca Sharpless, University of Miami School of Law Anette Sikka, University of Illinois Springfield Marjorie Silver, Touro Law Center Anita Sinha, American University Washington College of Law Matiangai Sirleaf, University of Pittsburgh Law School Gwynne Skinner, Willamette University College of Law Catherine Smith, University of Denver Sturm College of Law William Snape, American University, Washington college of law Gemma Solimene, Fordham University School of Law Mary Spector, SMU Dedman School of Law Jane Spinak, Columbia Law School Elissa Steglich, University of Texas School of Law, Immigration Clinic Nomi Stolzenberg, University of Southern California Law School Christopher Strawn, Immigration Law Clinic, Univ. of Washington School of Law Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic S.I., Strong University of Missouri Ellen Suni, UMKC School of Law Maureen Sweeney, University of Maryland Carey School of Law Chantal Thomas, Cornell University Law School Claire Thomas, Safe Passage Project Immigration Clinic at New York Law School 25 (51 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 32 of 35 Michael Tigar, Washington College of Law Karen Tokarz, Washington University Civil Rights & Community Justice Clinic Mary Pat Treuthart, Gonzaga University School of Law Enid Trucios-Haynes, Brandeis School of Law, University of Louisville Tracy Turner, Southwestern Law School Diane Uchimiya, Justice and Immigration Clinic, Univ. of La Verne College of Law Gloria Valencia-Weber, University of New Mexico School of Law Rachel Van Cleave, Golden Gate University School of Law Anthony Varona, American University Washington College of Law Lea B. Vaughn, University of Washington School of Law Kyle Velte, Texas Tech University School of Law Leti Volpp, Berkeley Law Julie Waterstone, Southwestern Law School Susan C. Wawrose, University of Dayton School of Law Jonathan Weinberg, Wayne State University Marley Weiss, University of Maryland Carey School of Law Marley Weiss, University of Maryland Carey School of Law Deborah Weissman, University of North Carolina Anna Welch, University of Maine School of Law 26 (52 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 33 of 35 Verna Williams, University of Cincinnati College of Law Wendy Williams, Georgetown Law Abby Wood, University of Southern California Gould School of Law Barbara Woodhouse, Emory Law School Karen Woody, Indiana University, Kelley School of Business Marcia Zug, University of South Carolina 27 (53 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 34 of 35 CERTIFICATION OF COMPLIANCE This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5)(a) and (a)(6) because it has been prepared in a proportionally spaced typeface, using Microsoft Word in Times New Roman 14-point font. This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) because it contains 2,577 words excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii). (The maximum number of words is 2,600 for an amicus brief in connection with a motion, which has a word limit of 5,200 words under Fed. R. App. P. 27(d)(2)(A)). Dated: February 5, 2017 /s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu (54 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-2, Page 35 of 35 CERTIFICATE OF SERVICE I hereby certify that on February 5, 2017, I electronically filed the foregoing with the Clerk of the court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: February 5, 2017 Respectfully submitted, /s/ Fatma E. Marouf _____________________ Fatma E. Marouf Professor of Law Director of the Immigrant Rights Clinic Texas A&M University School of Law Telephone: (817) 212-4123 Facsimile: (817) 212-4124 Email: fatma.marouf@law.tamu.edu (55 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 1 of 8 APPENDIX A TO AMICI BRIEF LIST OF U.S. INSTITUTIONS OF HIGHER EDUCATION THAT HAVE ISSUED STATEMENTS EXPRESSING CONCERNS ABOUT THE EXECUTIVE ORDER 13769 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. Adelphi University Amherst College Appalachian State University Auburn University Babson College Ball State University Bard College Barnard College Bates College Beloit College Bentley University Binghamton University Boston College Boston University Bowling Green State University Brandeis University Brown University Bryn Mawr College Bucknell University Butler University California Institute of Technology Carleton College Carlow University California State University, Dominguez Hills California State University, Fresno California State University, Fullerton California State University, Northridge California State University System Carnegie Mellon University Central Michigan University Chatham University Chestnut Hill College City University of New York Clemson University (56 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 2 of 8 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. Cleveland State University Cleveland State University Faculty Senate Colgate University College of Charleston College of William & Mary Colorado State University Columbia College Chicago Cornell University Creighton University Dakota State University Dartmouth College DePauw University DePaul University Drexel University Faculty of the Drexel University Thomas R. Kline School of Law Duke University Duquesne University Earlham College East Carolina University Eastern Michigan University Edmonds Community College Elizabethtown College Elon University Emerson College Fairleigh Dickinson University Florida International University Florida State University Foothill College Fordham University Georgia Institute of Technology Georgetown University George Mason University George Washington University Georgia Institute of Technology Georgia State University Grand Valley State University Grinnell College Hampshire College Harrisburg Area Community College Harvard University (57 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 3 of 8 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. Hiram College Humboldt State University Illinois Institute of Technology Illinois State University Indiana University Iowa State University Ithaca College James Madison University John Carroll University Johns Hopkins University Kalamazoo College Kansas State University Kent State University Kenyon College Lafayette College Lehigh University Lewis University Louisiana State University of Alexandria Loyola University Chicago Loyola University Maryland Loyola University New Orleans Macalester College Madison College Marquette University Marshall University Massachusetts Institute of Technology Marywood University Miami University Michigan State University Michigan Technological University Middlebury Institute of International Studies at Monterey Minerva Minnesota State University Mankato Mississippi State University Missouri University of Science and Technology Missouri State University Montana State University Montclair State University Mount Holyoke College New Mexico State University (58 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 4 of 8 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. New York University North Carolina State University Northern Illinois University Northwest Missouri State University Northwestern University Northwestern State University Oberlin College Ohio State University Ohio University Ohio Wesleyan University Oklahoma State University Old Dominion University Oregon State University Pacific Lutheran University Pacific Oaks College Pacific University Park University Pennsylvania State University Pomona College Portland State University Princeton University Purdue University Ramapo College Rice University Rochester Institute of Technology Rockefeller University Roosevelt University Rutgers, The State University of New Jersey Rutgers University – Newark Saint Xavier University San Diego State University San Francisco State University Saybrook University School for International Training (SIT) and SIT Graduate Institute Seattle University Seattle Pacific University Smith College Sonoma State University South Dakota State University Southern New Hampshire University (59 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 5 of 8 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. St. Louis University St. Olaf College Stanford University State University of New York (SUNY) System Stony Brook University Suffolk University Swarthmore College Syracuse University TCS Education System Temple University Texas A&M University Texas Tech University The Chicago School of Professional Psychology The College of New Jersey The College of Saint Rose The Colleges of Law Towson University Trinity College Troy University Truman State University Tufts University University of Akron University of Alabama University of Alabama at Birmingham University of Arizona University of Arkansas Fayetteville University of Buffalo University of California, Berkeley University of California, Davis University of California, Irvine University of California, Los Angeles University of California, San Diego University of California System University of California Hastings College of the Law University of Central Florida University of Chicago and Letter to President Trump University of Cincinnati University of Colorado Boulder University of Colorado Colorado Springs University of Colorado Denver - Anschutz Medical Campus (60 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 6 of 8 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. University of Connecticut University of Dayton University of Delaware University of Denver University of Detroit Mercy University of Evansville University of Florida University of Georgia University of Hawai'i University of Idaho University of Illinois System University of Illinois at Urbana-Champaign University of Iowa University of Kansas University of Kentucky University of Maryland University of Maryland Baltimore County University of Massachusetts Amherst University of Massachusetts Boston University of Massachusetts Dartmouth University of Massachusetts Lowell University of Massachusetts System University of Memphis University of Michigan University of Minnesota University of Mississippi University of Missouri University of Missouri-Kansas City University of Missouri-St. Louis University of Missouri System University of Montana University of Nebraska System University of Nebraska-Lincoln University of New Hampshire University of New Mexico University of Notre Dame University of North Carolina at Chapel Hill University of North Carolina at Charlotte University of North Carolina at Greensboro University of North Carolina at Wilmington (61 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 7 of 8 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. University of North Carolina System University of North Texas University of Oklahoma University of Oregon University of Pennsylvania University of Pittsburgh University of Portland University of Rhode Island University of Richmond University of Rochester University of San Diego University of South Alabama University of South Carolina University of South Dakota University of South Florida System University of Southern California University of Southern Indiana University of Tennessee University of Texas Arlington University of Texas at Austin University of Texas at Dallas University of Texas System University of Toledo University of Tulsa University of Vermont University of Virginia University of Washington University of Washington International Student Services University of Washington, Bothell University of Wisconsin-Madison University of Wisconsin-Eau Claire University of Wisconsin-La Crosse University of Wisconsin-Milwaukee University of Wisconsin-Platteville University of Wyoming University System of Georgia University System of Maryland Utah State University Valparaiso University Vanderbilt University (62 of 62) Case: 17-35105, 02/05/2017, ID: 10302885, DktEntry: 22-3, Page 8 of 8 275. 276. 277. 278. 279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. Virginia Commonwealth University Virginia Polytechnic Institute and State University Xavier University Washington University Washington State University Wayne State University Wellesley College Wesleyan University West Virginia University Western Kentucky University Western Michigan University Western Washington University Wichita State University Williams College Wilson College Wofford College Wright State University Yale University