In 2017, CJA joined international law scholars and nongovernmental organizations in filing an amicus brief in support of the International Refugee Assistance Project, the American Civil Liberties Union, and the National Immigration Law Center. The brief argues that the President’s travel ban targeting citizens of several majority Muslim countries, Executive Order 13780, commonly referred to as the “Muslim Ban,” violates United States obligations under international law. Specifically, CJA’s brief argues that international law is relevant to evaluating the legality of the Executive Order; that international law prohibits discrimination on the basis of religion or national origin; and that the Executive Order violates these prohibitions.

BACKGROUND

On March 6, 2017, President Trump signed Executive Order 13780 “Protecting The Nation From Foreign Terrorist Entry Into The United States” (EO 13780) in a move the New York Times described as “the most significant hardening of immigration policy in generations.”[1] The implementation of EO 13780 focused on suspending immigration from six specific countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen while imposing certain requirements on immigration from Iraq.

EO 13780 was a revision of a January 27, 2017 Executive Order that had imposed a freeze on refugee admissions and a ban on travel from seven Muslim-majority countries. Thousands of protesters gathered and marched in cities and at airports across the United States in opposition to that order, which was eventually blocked by a federal court order.

CJA’S AMICUS BRIEF

CJA’s Amicus brief in Donald J. Trump v. International Refugee Project  was filed on behalf of eighty-two international law scholars and several nongovernmental organizations with one common interest, to ensure the Supreme Court’s decision conform to the entire body of international laws and treaties binding the United States.

Our brief urges the court to recognize that the United States is bound by several international human rights treaties relevant to the subject matter of the EO as well as by customary international law. These international law obligations should inform the Court’s judgment as to the constitutionality of EO 13780. Such treaties include the International Covenant on Civil and Political Rights (ICCPR), which prohibits discrimination on the basis of religion and national origin. Additionally, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits discrimination based on national origin. These principles are also safeguarded in the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights, both of which inform customary international law as it applies to the United States. Thus, international law requires U.S. courts to reject any attempt to define classes based on national origin or religion, and then to impose on those classes disparate treatment, except to the extent necessary to achieve a legitimate government purpose.

EO 13780 impermissibly discriminates on the basis of national origin and religion by categorically denying entry to citizens of six majority Muslim countries —Iran, Libya, Somalia, Sudan, Syria, and Yemen, and imposing special requirements on immigrants from Iraq.[2] In addition, the order effectively discriminates on the basis of religion since every country targeted by the EO is overwhelmingly Muslim, and the EO does not suspend immigration from any state with a non-Muslim majority.

A New Travel Ban and Remand to the Lower Courts

On September 24, 2017, President Trump signed a revised Executive Order adding several non-Muslim majority countries to the travel ban.  The plaintiffs amended their existing lawsuit to encompass claims against President Trump’s proclamation, which blocks travel to the United States from six predominantly Muslim countries but also includes North Koreans and certain Venezuelan government officials. The Yemeni American Merchants Association and the Arab American Association of New York joined the lawsuit as plaintiffs. On October 24, 2017, the Supreme Court dismissed petitions in both this case and a related case out of the 9th Circuit (Trump v. Hawaii) as moot and remanded to the lower courts for further briefing.

Meanwhile, on Oct. 18, 2017, a federal district court in Maryland blocked President Trump’s newest EO from taking effect. A federal court in Hawaii issued a similar ruling a day earlier in a separate challenge.  The Trump administration appealed both rulings, and CJA joined very similar amicus briefs in both the 9th and 4th Circuit Courts of Appeals. On December 22, 2017, the 9th Circuit Court of Appeals rejected this third iteration of the travel ban. On January 19, 2018, The Supreme Court agreed to review the 9th Circuit Court’s  Opinion. In April 2018, CJA joined an amicus brief filed in the Supreme Court.

ATTACHED DOCUMENTS

30 Mar 2018 Hawaii v. Trump Amicus Brief  Supreme Court of the United States

22 Dec 2017 9th Circuit Opinion

21 Nov 2017 Hawaii v. Trump Amicus Brief  9th Circuit

17 Nov 2017  IRAP v. Trump Amicus Brief  4th Circuit 

24 Sep 2017  Revised Executive Order: Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

12 Sep 2017   CJA Brief at the Supreme Court

06 Mar 2017  Revised Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States

27 Jan 2017   First Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States

Sources:

[1] https://www.nytimes.com/2017/03/06/us/politics/travel-ban-muslim-trump.html

[2] The EO further discriminates based on national origin by requiring the Secretary of Homeland Security to “collect and make publicly available” certain information relating to convictions of terrorism-related offenses, government charges of terrorism, and “gender-based violence against women” by foreign nationals. The EO requires no publication of similar information relating to U.S. nationals. By mandating that the Secretary publish pejorative information about noncitizens without publishing comparable information about U.S. citizens, the EO makes a further suspect distinction based on national origin.