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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A049

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

eee st) ae
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

EE . e |

ees.
" . - i - ‘i a
: ; “oe 0 ee ee ee | ees ‘ a ee ee ee
ae Oe ee ey eae ES

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

ES 2hs 6s aes aN sca e a Cae eee ae ua eS

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

il

PAGE

G. Julia Shearson —
a ee A 17
III. Vacatur Is Not Warranted............. 19

EE Sb Advabbepeviss<cncasaen nes 20

ili

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

ee a ae
pa i le Nie ab aati a allie a .

~ ©

Pe ee a ee ay a eee ee oe

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A049. Public record. Not legal advice.