Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

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Nos. 16-1436 and 16-1540 SEP 18 2017

IN THE OFFICE OF THE CLEF

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.,

— Petitioners,

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,

Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.,

a Petitioners,

HAWAII, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURTS OF APPEALS FOR THE FOURTH AND NINTH CIRCUITS

BRIEF OF AMICI CURIAE HUSSAM AYLOUSH,

ZAHRA BILLOO, ROBERT McCAW, COREY SAYLOR,

JULIA SHEARSON, HASSAN SHIBLY, AND IMRAAN

SIDDIQUI IN SUPPORT OF RESPONDENTS

LENA F. MASRI MICHAEL PRICE

GADEIR I. ABBAS Counsel of Record

COUNCIL ON AMERICAN-ISLAMIC FAIZA PATEL

RELATIONS BRENNAN CENTER FOR JUSTICE

453 New Jersey Avenue SE AT NEW YORK UNIVERSITY

Washington, D.C. 20003 SCHOOL OF LAW

(202) 488-8787 120 Broadway, Suite 1750

New York, New York 10271

(646) 292-8335

michael.price@nyu.edu

JETHRO EISENSTEIN

PROFETA & EISENSTEIN

45 Broadway, Suite 2200

New York, New York 10006

(212) 577-6500

Counsel for Amici Curiae 60 et

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TABLE OF CONTENTS

TABI OF AUTRES EI occ ccs cccccesss

STATEMENT OF INTEREST........... ae

INTRODUCTION AND SUMMARY OF

IIs 55 Gao sb aaS des ek Reeser es

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I. The Ban Is “Capable of Repetition,

We BE Uc vcciccecsccsesess:

A. The Duration May Be Too Short.....

B. Continuing Assertion of Legality ....

II. Continuing Effects and Lasting

PCL sts Cl ivagDeradse kee Receeken 64603

A. Corey Saylor — Washington, D.C.....

B. Imraan Siddiqui — Arizona ..........

C. Hussam Ayloush —

Anaheim, California....... Beatie ABT

D. Zahra Billoo —

San Francisco, California............

E. Hassan Shibly — Florida.............

F. Robert McCaw —

Northern Virginia ...................

15

16

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PAGE

G. Julia Shearson —

a ee A 17

III. Vacatur Is Not Warranted............. 19

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TABLE OF AUTHORITIES

PAGE(S)

Cases

Adarand Constructors, Inc. v. Slater,

BR hanes 6

City of Mesquite v. Aladdin’s Castle,

ee I ce ck cc ceucivcccsecen 5, 6

Cohen v. California,

a ks cadens seunbtent onsen 12

Comer v. Cisneros,

37 F.3d 776 (2d Cir. 1994) ........... eT )

Davis v. Fed. Election Comm’n,

re is a duenecdat deedavveay 6

Fed. Election Comm’n v. Wis. Right to Life, Inc.,

ee ng ccessdeeskusdsees ve 6, 8

Friends of the Earth v. Laidlaw Envtl. Servs.,

ee cs cee cewebeeesueeea 4

Hawaii v. Trump,

859 F.3d 741 (9th Cir. 2017), cert. granted

sub nom., Trump v. Int'l Refugee Assistance

Project, 137 S. Ct. 2080 (2017)............... 3

Int'l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017)................. 2

Olmstead v. United States,

SPs INS hohe ied cccccecccacccceces 2

Parents Involved in Community Schools v.

Seattle School Dist. No. 1,

ee cs cv ewnseduceeeevesees 8

iv

PAGE(S)

Rezag v. Nalley,

677 F.3d 1001 (10th Cir. BO1Z). ... wcccccceses 9

S. Pac. Terminal Co. v. Interstate Commerce

Comm’n,

S10 UB. GOO TIG11): «6 vo soca veacceenesea aa 4

Spencer v. Kemna,

Bie He ay. Perey ee 4,5,9

Spokeo v. Robins,

b F Me Oe UF UG eee 8

Trinity Lutheran Church of Columbia v. Comer,

LOFT Bs CR. BES GGG vccvecvsccnccuncuawcees 7

Trump v. Int’l Refugee Assistance Project,

+ 2 Bo & §. . 3, ReePeeee 3, 4, 5, 6

Turner v. Rogers,

Bk Sg. 3 by es 8

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

BLS We. BG CRE 0 x ccbccceccvtseesent ae 19

Voices for Choices v. Ill. Bell Tel. Co.,

330 F.Sa GER Coe Caw. BOGE ccc cccvescscesess 1

Weinstein v. Bradford,

GES UL. COE Greet os sc ccccikecussnesseuueee 5

Other Authorities

@EladHutch, Twitter (Jan. 28, 2017, 9:58 PM),

https://twitter.com/EladHutch/status/

825583961791414272. .......... ewe ee anes 12

@o_MIRACLE_o, (Mar. 6, 2017, 12:30 PM),

https://twitter.com/o_MIRACLE_o0/status/

838849326524870660. ........... 0.0.06. e ee, 13

PAGE(S)

@realdonaldtrump, Twitter (Aug. 18, 2017,

9:06 AM), https://twitter.com/realdonald

trump/status/898531481185689600. ......... 8

@realdonaldtrump, Twitter (Jun. 13, 2017, 6:44 AM),

https://twitter.com/realdonaldtrump/status/

ee 7

@realdonaldtrump, Twitter (Jun. 5, 2017, 9:20 PM),

https://twitter.com/realdonaldtrump/status/

EE, «oc cccccctcvccccccccccoce 7

@Uluvsaz, Twitter (Mar. 6, 2017, 3:13 PM),

https://twitter.com/uluvsaz/status/

838890400458866693. ..................00-. 12

@Velvethammer, Twitter (January 29, 2017)

https://twitter. com/velvethammer/status/

IPE BOPIPEUOD «ccc ccc cccccccccccccce 12

@Will_ TrashDove, Twitter (Jan. 29, 2017,

1:43 AM), https://twitter.com/Will_

Trash Dove/status/82564044668890316...... 12

CAIR, 2017 on Track to Becoming One of the

Worst Years Ever for Anti-Muslim Hate

Crimes, CAIR (Jul. 19, 2017), available

at https://goo.g/MJkQdH ................... 10

CAIR, Civil Rights Data Quarter One Update:

Anti-Muslim Bias Incidents January —

March 2017 (May 2017), available at

ccc ca cececccseeeeseuece 10

PAGE(S)

CAIR, Civil Rights Data Quarter Two

Update: Anti-Muslim Bias Incidents

April — June 2017 (July 2017), available

OE EEE, bcc ccccboaccidécscccs 10

CAIR, The Empowerment of Hate: Civil

Rights Report 2017 (2017), available at

https://goo.gl/Uq59tq ...........e0ssee0e 10, 11

Christopher Ingraham, American mosques —

and American Muslims — are being

targeted for hate like never before,

Wash. Post (Aug. 8, 2017), available at

https://www.washingtonpost.com/news/

wonk/wp/2017/08/08/american-mosques-

and-american-muslims-are-being-

targeted-for-hate-like-never-before ............ 10

Dan Scanlan & Garrett Pelican, Police:

Armed with Guns and Racial Insults,

Jacksonville Man Assaults Muslim

Neighbor (Apr. 4, 2017, 9:24 p.m.),

available at http://jacksonville.com/

news/public-safety/2017-04-04/police-

armed-guns-and-racial-insults-

jacksonville-man-assaults-muslim......... 15, 16

Jill E. Fisch, Rewriting History: The

Propriety of Eradicating Prior Decisional

Law Through Settlement and Vacatur,

76 Cornell L. Rev. 589, 630 (1991)............. 20

vii

PAGE(S)

KRoseVideo, Robert Spencer at ACT

Cleveland 24apr2017, YouTube

(May 6, 2017), https://www.youtube.com/

watch?v=sRQDc9YvgfQ ................----5- 18

Mark Moore, Spicer: All of Trump’s tweets

are his official statements, N.Y. Post

(Jun. 6, 2017), available at

http://nypost.com/2017/06/06/spicer-all-

of-trumps-tweets-are-his-official-

DCCC ci ostcatettaikidacunsenbe beens 7

Presidential Documents and Administrative

Materials

82 Fed. Reg. 8977, Effective Date in Executive

Order No. 13,769 (Mar. 6, 2017) ............ 11

82 Fed. Reg. 13209, 13218, Executive Order

Be, eS Gh, SEE co cece cccccccers passim

I ee er ee ths oh ee ee 4,5

82 Fed. Reg. 27965, Executive Order

No. 13,780 (Jun. 14, 2017).............. cn ae

Constitutional Provisions

U.S. Constitution, First Amendment......... 2,9

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1

STATEMENT OF INTEREST?

Amici are prominent Muslim American citizens who

work for community organizations across the United

States and have witnessed the harms from the

President’s executive orders restricting travel from

predominantly Muslim countries. Amici have seen

increased discrimination, hate speech, and threats of

violence as a result of the anti-Muslim animus that

underpins this policy. They therefore have “...a unique

perspective [and] specific information that can assist

the court beyond what the parties can provide.” Voices

for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th

Cir. 2003) (Posner, C.J. in Chambers). Amici offer

their experiences in support of Plaintiffs-Respondents

and in support of affirmance of the circuit court

decisions below.

Amici are leaders of the Council on American-

Islamic Relations (“CAIR”), the country’s largest

Muslim civil rights organization, with local chapters

throughout the country. Each chapter shares a

common mission to enhance the understanding of

Islam, encourage dialogue, protect civil liberties,

empower American Muslims, and build coalitions that

promote justice and mutual understanding.

1 The parties’ letters consenting to the filing of all amicus briefs

have been filed with the Clerk’s office. Pursuant to Supreme

Court Rule 37.6, amici state that this brief was not authored in

whole or in part by counsel for any party, and that no person or

entity other than amici or their counsel made a monetary

contribution to fund the preparation or filing of this brief. This

brief does not purport to represent the position of NYU School of

Law.

2

INTRODUCTION

AND SUMMARY OF ARGUMENT

“Our government is the potent, the omnipresent

teacher. For good or for ill, it teaches the whole people

by its example.” Olmstead v. United States, 277 U.S.

438, 485 (1928) (Brandeis, J., dissenting). The

pernicious lesson of Executive Order No. 13,7802 is

that discrimination against Muslims is not only

acceptable, but officially encouraged under the Trump

Administration. Anti-Muslim animus was _ the

motivation for this policy, and that officially-

sanctioned discrimination has_ activated and

legitimated additional acts of hatred against Muslims.

If this Court does not rule on the merits of this case,

the pernicious lesson of the Order will persist.

Amici are prominent American Muslims who are

active in affected Muslim communities across the

United States. They offer their accounts of how the

pernicious lesson of the Executive Order has affected

their communities, well beyond the denial of visas.

They recount incidents of religious hatred that have

taken place in American cities throughout this country

since the Order was issued. They describe the

discrimination, legitimated by the Order, which

continues to feed fears and intimidate their

communities.

The Fourth Circuit found that the Order “drips with

religious intolerance, animus, and discrimination,”

and is likely to violate the Establishment Clause of the

First Amendment. Int’ Refugee Assistance Project v.

Trump, 857 F.3d 554, 572; 601 (4th Cir. 2017). The

Ninth Circuit held that it likely violates the

2 Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017)

(hereinafter the “Executive Order” or the “Order”).

3

Immigration and Nationality Act, which forbids

discrimination on the basis of nationality. Hawaii v.

Trump, 859 F.3d 741, 779 (9th Cir. 2017), cert. granted

sub nom., Trump v. Intl Refugee Assistance Project,

137 S. Ct. 2080 (2017). Amici ask the Court to uphold

these decisions — to reinforce a corrective lesson — and

with the authority of this Court, to reject the stigma

sanctioned by President Trump’s Executive Order.

Amici seek judicial condemnation of such

discrimination and confirmation that it is contrary to

the laws and founding principles of this country. While

the travel ban is nominally of limited duration, some

of its harms have no expiration date. In short, this case

is not moot for Amici. It is not moot for the American

Muslims who have suffered a spike in anti-Muslim

discrimination. It is not moot for the more than 85

American mosques that have been vandalized with

pro-Trump graffiti. It is not moot for the American

victims of anti-Muslim hate crimes, which have surged

by 91 percent this year.

In sum, this case is not moot for the millions of

American Muslims who continue to be stigmatized by

the Executive Order. Amici ask this Court to be a good

teacher, and to say, clearly and unmistakably, that

executive actions based on religious animus are

unlawful and repugnant to the Constitution. Neither

the country nor the Constitution can tolerate

conspicuous silence on this score from the highest

Court in the land.

Even if the Court does find the case moot, it should

not vacate the decisions below, as proposed by the

government. Petr Br. at 37-38. Vacatur is an

extraordinary equitable remedy and is_ wholly

unjustified in this case. Instead, this Court should

uphold the substance of the decisions below. It should

4

rule on the merits and convey, to President Trump as

well as all Americans, that discrimination on the basis

of religion will not be tolerated now, or in the future.

ARGUMENT

When granting certiorari, the Court instructed the

parties to address “[w]hether the challenges to §2(c)

became moot on June 14, 2017." Trump v. Intl Refugee

Assistance Project, 137 S. Ct. 2080, 2087 (2017). Here,

the “only conceivable basis for a finding of mootness”

is the government’s voluntary conduct — a shifting,

self-imposed expiration date for implementation of the

travel ban in §2(c). In the circumstances of voluntary

cessation, a mootness claim requires the Petitioners to

bear the heavy burden of persuading the Court that

the challenged conduct cannot reasonably be expected

to start up again. Friends of the Earth v. Laidlaw

Envtl. Servs., 528 U.S. 167, 189 (2000). In addition, the

Order falls within an exception to the mootness

doctrine as a controversy that is “capable of repetition,

yet evading review.” Spencer v. Kemna, 523 U.S. 1, 17

(1998).

The Order has also inflicted lasting harmful stigma

on American Muslims across the country, beyond the

denial of visas, which will linger long after any

arbitrary expiration date. The remedy for these

wrongs is a ruling from this Court upholding, not

vacating, the decisions below.

I. The Ban Is “Capable of Repetition, Yet

Evading Review”

This is a classic controversy that is “capable of

repetition, yet evading review.” Kemna, 523 U.S. at

17; S. Pac. Terminal Co. v. Interstate Commerce

5

Comm'n, 219 U.S. 498, 515 (1911). There is a

longstanding exception to the mootness doctrine for

situations where, as here, (1) “the challenged action

[is] in its duration too short to be fully litigated prior

to cessation or expiration,” and (2) “there [is] a rea-

sonable expectation that the same complaining party

[will] be subject to the same action again.” Kemna, 523

U.S. at 17 (brackets in original) (quoting Lewis v.

Cont Bank Corp., 494 U.S. 472, 481 (1990) (quoting

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per

curium))); Weinstein v. Bradford, 423 U.S. 147 (1975).

This case squarely satisfies both criteria.

The duration of §2(c) may be too short to be fully

litigated before it formally expires. But as Petitioners

have already acknowledged, the duration of §2(c) is

malleable, has already been extended, and is subject

only to the whim of the Executive. Second, Petitioners

continue to assert the legality of the ban, which

counsels firmly against a finding of mootness. Both

factors indicate that the President would be “free to

return to his old ways” if given half a chance. City of

Mesquite v. Aladdin’s Castle, 455 U.S. 283, 289 n.10

(1982) (quoting United States v. W. T. Grant Co., 345

U.S. 629, 632 (1953)).

A. The Duration May Be Too Short

As this Court suggested, it is conceivable that §2(c)

became moot on June 14, 2017. Trump, 137 S. Ct. at

2087. By its own terms, the ban has a 90-day clock that

arguably began on March 16. Exec. Order No. 13,780,

82 Fed. Reg. 13209, 18218 (Mar. 6, 2017). Ninety days

from March 16 was June 14, 2017. Based on that

reckoning, the ban had expired before the Court hears

this case.

Nonetheless, it is “well settled that a defendant’s

voluntary cessation of a challenged practice does not

6

deprive a federal court of its power to determine the

legality of the practice.” City of Mesquite, 455 U.S. at

289. Rather, “[vjoluntary cessation of challenged

conduct moots a case ... only if it is ‘absolutely clear

that the allegedly wrongful behavior could not

reasonably be expected to recur.” Adarand

Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000)

(quoting United States v. Concentrated Phosphate

Export Ass’n, 393 U.S. 199, 203 (1968)); see also, Davis

v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008)

(campaign dispute not moot due to election); Fed.

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S.

449, 462 (2007) (same).

Here, Petitioners have already ‘clarified’ the

expiration date once. See Effective Date In Executive

Order 13780, 82 Fed. Reg. 27965, 27965 (Jun. 14,

2017). President Trump simply decreed that the

“effective date of the enjoined provisions ... is delayed

or tolled until those injunctions are lifted or stayed,”

id., an event that did not occur until this Court’s

grant of certiorari on June 26, 2017, when it partially

lifted the injunctions below. Trump, 137 S. Ct. at

2089. By Petitioners’ own watch, the ban would not

expire until at least September 24, 2017.

Thus, while the duration of the ban may appear too

short by some calculations, it is also extendable at the

discretion of the Executive. Indeed, both parties agree

that the ban could be extended at any time. Pet’r Br.

at 37; Resp’t Br. at 26. There is also nothing

preventing the President from issuing another version

of the edict tomorrow. The Order is_ therefore

demonstrably capable of repetition, if not outright

extension.

7

B. Continuing Assertion of Legality

As this Court has recently recognized, even

“ ..voluntary cessation of a challenged practice does

not moot a case unless “subsequent events ma|[ke] it

absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur....” Trinity

Lutheran Church of Columbia v. Comer, 137 S. Ct.

2012, 2019 n.1, (2017) (internal citation omitted).

Here, far from voluntarily ending the challenged

executive order, the President has repeatedly

expressed the intention of keeping it in place.

Throughout the summer, the “official statements of

the President”’ on Twitter have included the following:

e June 5, 2017 — “That’s right, we need a

TRAVEL BAN for certain DANGEROUS

countries, not some politically correct term

that won’t help us protect our people!”4

e June 13, 2017 — “Well, as predicted, the 9th

Circuit did it again — Ruled against the

TRAVEL BAN at such a dangerous time in the

history of our country. S.C."5

e August 18, 2017 — “Radical Islamic Terrorism

must be stopped by whatever means necessary!

3 See Mark Moore, Spicer: All of Trump’s tweets are his official

statements, N.Y. Post (Jun. 6, 2017), available at

http://nypost.com/2017/06/06/spicer-all-of-trumps-tweets-are-his-

official-statements/.

4 @realdonaldtrump, Twitter (Jun. 5, 2017, 9:20 PM), https://

twitter.com/realdonaldtrump/status/87 189951 1525961728.

5 @realdonaldtrump, Twitter (Jun. 13, 2017, 6:44 AM), https://

twitter.com/realdonaldtrump/status/874578 159676665857.

8

The courts must give us back our protective

rights. Have to be tough!”6

President Trump continues to assert that the

challenged Executive Order is legal and necessary.

There is, thus, a “reasonable expectation” based on a

“demonstrated probability” that “the same controversy

will recur involving the same _ complaining

party.” Wisconsin Right to Life, 551 U.S. at 463

(internal citation omitted).

Faced with the President’s ongoing enthusiastic

defense of the Executive Order, there can be no

assurance that the religiously discriminatory policy

underlying it will not be re-implemented. See Parents

Involved in Community Schools v. Seattle School Dist.

No. 1, 551 U.S. 701, 719 (2007). This is a textbook

example of a controversy capable of repetition yet

evading review.

Il. Continuing Effects and Lasting Harms

In addition to the “tangible” harms inflicted on

family and friends of visa applicants, the animus

embodied by the Executive Order and President

Trump’s public justifications for it have had collateral

consequences for American Muslims that continue to

this day. These injuries do not stem from a visa denial,

but they are nonetheless “concrete” under this Court’s

precedents. See Spokeo v. Robins, 136 S. Ct. 1540,

1549 (2016) (citing Church of the Lukumi Babalu Aye

v. City of Hialeah, 508 U.S. 520 (1993)); see also

Turner v. Rogers, 564 U.S. 431, 439 (2011) (“release

from prison does not moot acriminal case because

‘collateral consequences’ are presumed to continue”)

(citing Sibron v. New York, 392 U.S. 40, 57 (1968)

6 @realdonaldtrump, Twitter (Aug. 18, 2017, 9:06 AM), https://

twitter.com/realdonaldtrump/status/89853 1481185689600.

9

(holding that “a criminal case is moot only if it is shown

that there is no possibility that any collateral legal

consequences will be imposed on the basis of the

challenged conviction.”)); Kemna, 523 U.S. at 7-8

(same).

The impact of the Executive Order extends beyond

the immigration context to a branding of Muslims as

terrorists, precipitating an increase in incidents of

anti-Muslim discrimination and hate speech, as well

as threats of violence explicitly tied to the Executive

Order. Accordingly, this Court should uphold the

injunctions below in order to “eradicate the effects” of

the Executive’s past conduct on the present. Rezag v.

Nalley, 677 F.3d 1001, 1009 (10th Cir. 2012) (quoting

13C Charles A. Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3533.7 (3d

ed. 2008)).

As illustrated by Amici below, this case is far from

moot. The Executive Order continues to stigmatize

American Muslims, spurring vitriol and vile insults

assaulting their faith while _ legitimizing

discrimination. This case will not be moot unless and

until these the effects have been “completely and

irrevocably eradicated.” Comer v. Cisneros, 37 F.3d

775, 800 (2d Cir. 1994). Amici demonstrate that the

ban may go away, but the stigma will stay. This case

therefore cries out for a decision on the merits, a

pronouncement from the highest court in the country

that orders violating the First Amendment will not go

unchecked by the judiciary.

A. Corey Saylor - Washington, D.C.

Corey Saylor is a resident of Virginia and works at

the headquarters of the Council on American-Islamic

Relations (“CAIR”) as its Director of the

Department to Monitor and Combat Islamophobia.

10

Corey has monitored anti-Muslim incidents since

1998, using data reported by CAIR offices across the

country. The data collected by CAIR indicates that the

issuance of the travel ban has coincided with an

unprecedented 91 percent surge in hate crimes against

Muslims in the United States through June 2017.

Spikes in anti-Muslim sentiment are predictably

common in at least two circumstances: after a terrorist

attack, and around an election cycle. In 2016, Corey

documented a 44 percent increase in anti-Muslim hate

crimes from the previous year. But in the past, anti-

Muslim sentiment has returned to more ‘normal’ levels

after an election cycle. Instead, anti-Muslim hate

crimes have spiked by 91 percent.’ In the first half of

2017, there have been 85 anti-Islamic incidents at

mosques, more than any year between 2009 and 2015.8

These incidents include 24 cases of property damage

and vandalism, 30 cases of intimidation, and four

instances of alleged anti-Muslim bias in rejecting

proposals to build mosques. See Christopher

Ingraham, American mosques — and American

7 2017 on Track to Becoming One of the Worst Years Ever for

Anti-Muslim Hate Crimes, CAIR (Jul. 19, 2017), https://goo.gl/

MJkQdH, (70 hate crimes reported in the first half of 2016);

CAIR, The Empowerment of Hate; Civil Rights Report 2017

(2017), available at https://goo.gl/Uq59tq; CAIR, Civil Rights

Data Quarter One Update: Anti-Muslim Bias Incidents January

— March 2017 (May 2017), available at https://goo.gl/X43YgU (65

hate crimes reported in Q1); CAIR, Civil Rights Data Quarter

Two Update: Anti-Muslim Bias Incidents April — June 2017 (July

2017), available at https://goo.gl/XhzZdd (69 hate crimes reported

in Q2) (134 hate crimes reported in 2017's Q1-Q2 as compared to

70 in 2016’s Q1-Q2).

8 Id.

11

Muslims — are being targeted for hate like never before,

Wash. Post (Aug. 8, 2017);9 see also CAIR, The

Empowerment of Hate (2017).

In sum, based on CAIR’s data and Corey’s analysis,

the Trump Administration’s travel and _ visa

restrictions continue to fuel anti-Muslim sentiment

and hate crimes to an extent never seen before.

B. Imraan Siddiqui — Arizona

Imraan Siddiqui lives in Arizona where he works

as the executive director of CAIR’s Arizona chapter.

In this capacity, he oversees the organization’s

services to the Arizona Muslim community,

including legal and advocacy work focused on

defending the civil rights of Muslims and

challenging anti-Muslim activity. Imraan is also

very active on social media, particularly within the

Muslim community across the country.

Imraan observed that Executive Order 13,769 — the

initial version that first established the ban!® —

triggered social media scorn against Muslims and

Islam from those who supported the Trump

Administration’s travel and visa restrictions. On

Twitter, individuals opposed to the ban organized

many of their postings via the hashtag

#NoBanNoWall. In response to these efforts,

individuals who embraced the travel ban coined the

hashtag #YesBanYesWall to organize their own

postings, which used the arrival of the ban as a vehicle

® Available at https://www.washingtonpost.com/news/wonk/

wp/2017/08/08/american-mosques-and-american-muslims-are-be

ing-targeted-for-hate-like-never-before.

10 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Mar. 6, 2017).

12

to justify expressions of contempt for Muslims and

Islam.

A representative refrain was to denigrate Muslims

as somehow inherently deviant while embracing the

ban as a protection against that deviance. For

example, one user posted the following two days after

the first executive order establishing the ban: “When

one says #NoBanNoWall, I imagine they are ok with

young children being assaulted by sexually repressed

Muslims. #YESbanYESwall.”!! Others used the order

to advocate for the exclusion of Islam in America: “Hey

ho, hey ho, Islam has got to go!”!2 Still others heaped

scorn on the Muslim community and its religion

categorically: “...#YesBanYesWall{,] Fuck you and

fuck #islam.”!° In short, the ban provided a validating

platform for individuals to openly express animosity

towards Islam and Muslims.

On March 6, 2017, after President Trump signed

Executive Order 13,780, individuals on Twitter used

the hashtag #banislam to organize their anti-Muslim

postings. One individual “thank[ed]” President Trump

for keeping us safe” using the #banislam hashtag, and

exclaimed “No Rapefugees!!"'4* Another individual

“\ @EladHutch, Twitter (Jan. 28, 2017, 9:58 PM), https://twitter.

com/EladHutch/status/82558396 1791414272.

'2 @Velvethammer, Twitter (January 29, 2017) https://twitter.

com/velvethammer/status/825581260391 133184.

‘8 @Will_TrashDove, Twitter (Jan. 29, 2017. 1:43 AM), https://

twitter.com/Will_TrashDove/status/82564044668890316. Amici

do not wish to offend the Court with obscene quotes, but believe

it is important to provide an accurate account of the vitriol

Muslims continue to encounter related to the ban. See Cohen v.

California, 403 U.S. 15, 16 (1971).

14 @Uluvsaz, Twitter (Mar. 6, 2017, 3:13 PM), https://twitter.

com/uluvsaz/status/838890400458866693.

13

linked to an article regarding the signing of the Order

and commented: “#banislam FOREVER.” Others

used the Order as an occasion to suggest the unique

deviance of Islam — claiming that Muslims are

inherently “violent” and that they “kill” and “rape.”

While anti-Muslim hate speech is not new, what

stands out for Imraan is the degree to which it was

linked to a _ specific policy adopted by a USS.

administration and fed by the statements of a sitting

American president.

C. Hussam Ayloush — Anaheim, California

Hussam Ayloush has been the executive director of

CAIR’s Los Angeles chapter (“CAIR-LA”) since 1998.

Hussam oversees various efforts to advocate for and

defend the rights of Muslims in the Greater Los

Angeles Area. His office provides legal services to

Muslim immigrants as well as_ individuals

discriminated against because of their Islamic beliefs

and practices — two groups particularly implicated by

the Trump Administration’s travel ban.

Since the executive orders took effect, the CAIR-LA

office has received, in Hussam’s estimation, triple the

amount of electronic and regular mail compared to

2016. These messages often express vulgar anti-

Muslim views, regularly refer to the ban to justify

their bigotry, and indicate that the Trump

Administration’s policies have bolstered their anti-

Muslim views. In one particularly shocking instance,

Hussam received an email in July 2017 with the

subject line “Muslim sewer rats.” The email went on

to cali Hussam “Muslim PIG SWINE” and claimed

that there were millions of “PATROITS [sic] armed to

16 @o MIRACLE o, (Mar. 6, 2017, 12:30 PM), https://twitter.

com/o_MIRACLE_0/status/838849326524870660.

14

the teeth with HUNDREDS of millions of weapons,

with hterally over 50 BILLION rounds of horrific,

violent camel jockey piercing rounds of ammo.”

Tellingly, in threatening war against Hussam and the

Muslim community, the sender noted that “We have a

LEADER in the White House, now standing for

JUDEO-Christian values.”

As the executive director of CAIR-LA, Hussam has

witnessed firsthand how President Trump's executive

orders have amplified anti-Muslim sentiment, as the

above message exemplifies. The orders have been

interpreted as lending the credibility and stature of

the White House to the notion that Muslims must be

excluded from America.

D. Zahra Billoo — San Francisco, California

Zahra is the executive director of CAIR’s San

Francisco chapter (“CAIR-SFBA”), which provides

legal services to the Muslim community, educates

Muslims and others about their rights, and works with

allies on shared social justice and civil rights goals.

She has served as the director for eight years.

Zahra monitored the 2016 presidential campaign as

well as the Trump Administration's efforts to prevent

visitors from Muslim countries from coming to the

U.S., both of which contributed to a social climate of

fear and intimidation in the Bay Area. Through her

work with Muslim community members, Zahra has

heard directly from individuals targeted in hate

incidents that make up the 91% spike documented by

CAIR.

The day after the November 2016 election, for

example, a visibly Muslim college sophomore was

walking to her car when a man grabbed her hijab from

15

behind and pulled her back towards him. She was able

to fight off the attacker but fell hard to her knees.

In another incident, during April 2017, at a town

hall hosted by a Bay Area elected official, CAIR-

SFBA’s government affairs director spoke as a panelist

and attempted to address the anti-Muslim sentiment

that had increased and hardened since President

Trump issued the travel ban. But as she began

speaking, the crowd shouted her down, chanting in

unison that she “denounce terrorism” and “denounce

Sharia Law.” The vitriol aimed at Zahra’s employee

was so threatening that police escorted her to her

vehicle.

These types of incidents, in addition to the overall

increase in hate crimes targeting Muslims reported by

her colleagues at CAIR and in the press, led Zahra to

fear for the safety of her fellow Bay Area Muslims, her

employees, and herself. Zahra views incidents like this

as reflecting the same anti-Muslim message endorsed

by the Trump Administration in creating the travel

ban.

E. Hassan Shibly - Florida

Hassan Shibly is executive director of CAIR’s

Florida chapter (““CAIR-FL”). Since the announcement

of the ban, his office has seen a marked marked

increase in the reporting of hate crimes against

Muslims. In the aftermath of the ban, individuals

called several mosques in Florida and threatened to

bomb them. In one instance, during April 2017, a man

threatened a Muslim family at gunpoint and shouted

anti-Muslim slurs at them. “I’m going to kill all you

Muslim motherfuckers, get out of my country.”!6

16 Dan Scanlan & Garrett Pelican, Police: Armed with Guns and

Racial Insults, Jacksonville Man Assaults Muslim Neighbor,

16

Many of the hate crimes committed against Muslims

in Florida, like the one described above, reference

excluding Muslims from the United States. They draw

support from the unmistakable message broadcast by

the ban, and it is no coincidence that the increase in

anti-Muslim hate crimes immediately followed the

travel ban executive orders. Simply put, the message

sent by the executive orders has frightfully altered the

political landscape for Muslims in Florida.

F. Robert McCaw — Northern Virginia

Robert McCaw is the Director of Government Affairs

for CAIR National, the nation’s largest Muslim civil

rights organization. Robert works with CAIR chapters

throughout the country to increase Muslim civic

participation. Because CAIR National’s office is in

Washington DC, and Robert lives nearby in Northern

Virginia, his work and personal life have immersed

him in the life of the Muslim community in and around

the capital.

When President Trump signed the first travel ban

order in January 2017, Robert was outside the country

with a relative, who is a green card holder originally

from Bangladesh, a country not affected by the order.

Even though the order did not technically apply to

Robert’s relative, they saw it as being targeted at

Muslims and were concerned that it would affect their

ability to reenter the United States.

In another instance, a different family member, who

wears hijab and has a South Asian complexion, was

attempting to enter the U.S. when a customs official

asked his colleague: “Why is she even here?” Robert

jacksonville.com (Apr. 4, 2017, 9:24 p.m.), http://jacksonville.

com/news/public-safety/2017-04-04/police-armed-guns-and-

racial-insults-jacksonville-man-assaults-muslim.

17

understood the question as an indication that the

customs official understood the travel ban as a

directive to target Muslims. The question itself was an

expression of anti-Muslim sentiment.

Based on his work with CAIR, Robert is also familiar

with the tenor and frequency of hate mail that CAIR

receives. Starting in January 2017, the messages

CAIR received began to draw inspiration and

justification from the travel ban order. For example, in

May 2017, CAIR received correspondence that

explained that “Trump is our president” and that “[bly

putting Trump in office we the people have spoken,

and we the people believe that any Muslims who

cannot assimilate to the American way of life, can just

get the fuck out of our country!!” The sender went on

to articulate the type of assimilation expected which

would involve, in part, an abandonment of Islamic

practice: “We here in America love pork, bacon,

Christmas, Easter, bikinis, etc.”

Another email from August 2017 prc '! imed: “Now

that Donald is president there, your religion of death

& war is being exposed for its drive for

martyrdom.” And in June 2017, a sender asserted that

the prophet of Islam was “a pig fucking pervert and a

drunk,” that the sender was “middle America and we

are armed and ready,” and that the “[d]eportations will

be starting soon.” The reference to deportations is a

clear reference to the travel ban. In each instance,

Robert understood the authors of these messages to

draw support from Trump Administration’s travel and

visa restrictions and all of the anti-Muslim sentiment

they embolden.

G. Julia Shearson -— Cleveland, Ohio

Julia Shearson is the executive director of CAIR’s

Cleveland chapter. Based on her professional

18

experience, President Trump’s travel ban orders have

encouraged anti-Muslim discrimination and anti-

Muslim violence in Ohio. From Julia’s perspective, the

temporal sequence is telling: the executive orders

precipitated an unmistakable rise in anti-Muslim

activity.

On April 24, 20:7, an anti-Muslim group called

“ACT for America” sponsored a speech in Cleveland by

Robert Spencer, a well-known purveyor of anti-Muslim

myths. During the event, Spencer used the executive

orders as a way to demonstrate that Muslims and

Islam are dangerous.

The title of Spencer’s talk was “The Truth about the

War We're in.”'? He delivered his remarks to an

engaged audience in Northeast Ohio, explaining that

the travel ban is necessary given the unique

challenges of ‘vetting’ Muslim travelers and

immigrants. Spencer attributed the inability to vet

Muslims to Islam itself, claiming that Islam contains

in it a theological command to Muslims to deceive

government officials in order to gain entry to the

United States. Lying to gain entry to the United

States, claimed Spencer, was viewed by Muslims as an

“active virtue” and Muslims believe they are “serving

their god by disassembling [sic].”!®

The executive orders have provided this anti-

Muslim speaker, and anti-Muslim activists in general,

with government-endorsed legitimacy, which gives

them the ability to deepen and foment anti-Muslim

17 KRoseVideo, Robert Spencer at ACT Cleveland 24apr2017,

YouTube (May 6, 2017), https://www.youtube.com/watch

2v=sRQDc9YvefQ.

18 Td.

19

sentiment and gives credibility to other efforts to turn

anti-Muslim sentiment into anti-Muslim action.

Ill. Vacatur Is Not Warranted

In the event that the Court finds that these cases

are moot, it should not vacate the decisions below.

Vacatur is a form of equitable relief, and Petitioners

have the burden of showing their “equitable

entitlement to the extraordinary remedy of vacatur.”

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513

U.S. 18, 26 (1994). As always, when federal courts

contemplate equitable relief, the determination:

. must also take account of the public

interest. “Judicial precedents are

presumptively correct and valuable to the

legal community as a whole. They are not

merely the property of private litigants and

should stand unless a court concludes that the

public interest would be served by a vacatur.”

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, supra,

513 U.S. at 26-27 (citing Kaisha v. U.S. Philips

Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting)).

Judicial decisions are not only valuable to the legal

community; they are valuable to the nation as a whole:

[O]ne of the social values of litigation is the

resolution of uncertainty in the law. This

resolution is important not merely for its legal

effect in subsequent lawsuits, but for its social

impact as well. Judicial decisions influence

our perception of what is right and wrong. A

decision like that in Brown v. Board of

Education decides more than the issue of the

legality of a segregated public school system

in Kansas.”

20

Jill E. Fisch, Rewriting History: The Propriety of

Eradicating Prior Decisional Law Through Settlement

and Vacatur, 76 Cornell L. Rev. 589, 630 (1991)

(footnotes omitted).

Petitioners have ignored the public interest and

offered nothing to show how vacatur would serve it.

See Pet’r Br. At 37-38. In fact, vacating the decisions

below would disserve the public interest by sending a

signal that the Executive Order was lawful. It would

feed and validate anti-Muslim sentiment in this

country.

CONCLUSION

For the reasons set forth above, Amici urge this

Court to conclude that these cases are not moot and

that the decisions of the Courts of Appeals should be

affirmed. In the alternative, if this Court concludes

that the cases are moot, the decisions of the Courts of

Appeals should not be vacated.

For Amici, it is critical that this Court uphold the

precedents set by the Fourth and Ninth Circuits,

enjoining the order for what it is and always has been:

a pernicious government lesson, stigmatizing Muslims

and legitimizing Islamophobia.

Respectfully Submitted,

MICHAEL PRICE

Counsel of Record

FAIZA PATEL

BRENNAN CENTER FOR JUSTICE

AT NEW YORK UNIVERSITY

SCHOOL OF LAW

120 Broadway, Suite 1750

New York, New York 10271

(646) 292-8335

michael.price@nyu.edu

21

LENA F. MASRI

GADEIR I. ABBAS*

COUNCIL ON AMERICAN-ISLAMIC

RELATIONS

453 New Jersey Avenue SE

Washington, D.C. 20003

(202) 488-8787

*Licensed in VA; not in D.C.

JETHRO EISENSTEIN

PROFETA & EISENSTEIN

45 Broadway, Suite 2200

New York, New York 10006

(212) 577-6500

Counsel for Amici Curiae