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

Supreme Court of the United States

7 —

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.

Petitioners,

V-

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL.,

Respondents.

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.

Petitioners,

Vv.

HAWAII, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH AND NINTH CIRCUITS

BRIEF OF AMIC] CURIAE

HARDWIRED GLOBAL; [IRAQI CHRISTIANS ADVOCACY AND

EMPOWERMENT INSTITUTE; CHINA AID;

THE MANDAEAN HUMAN RIGHTS GROUP; YAZDA -

A GLOBAL YAZIDI ORGANIZATION; GREGORY DOLIN;

IRINA TSUKERMAN; AND KATHERINE LITVAK

IN SUPPORT OF NEITHER PARTY

Bruce D. Abramson, Counsel of Record

Gregory Dolin

University of Baltimore Schoo! of Law

1420 North Charles Street

Baltimore, MD 22101

(410) 837-4610

gdolin@ubalt.edu

Counsel for Amici Curiae

GibsouMoore Appellate Services, LLC

206 Eaat Cary Sitreet® Richmond, VA 23219

804-248-7770 ¢ www.gibiteonmoore.net ow™

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TABLE OF CONTENTS

Page

I i cnccncsesseseresines sneveeseeses ii

INTEREST OF AMICI CURIAE............0600..6cc0ccceeenees l

a . ncsenneneensunte 3

SUMMARY OF THE ARGUMENT ........................... 6

Nee as csncteudniucanercceciees 7

[. Asylum is Inextricably Entwined with

EEE OD 7

A. Adherents of Minority Faiths Are

Most Vulnerable to Persecution................. 8

1. The Treatment of Jews and Other

Religious Minorities in the USSR........... 9g

2. The Treatment of Religious

Minorities in Some Middle Eastern

a acssssndtcortonen 12

B. Proving Individualized Persecution

on the Basis of Religion is Often

Quite Hard, Even for Members of

sec csdaseebines 17

Il. Preferences For Persecuted Religious

Minorities Have Long Been Part of the

in asndpnpennesevnsveoson 19

A. The Lautenberg Amendment is a

Strong Precedent for Extending

Preferential Treatment to Minority

ET oie ccccdandebscdasouedecsessenesese 21

ai ae

B. The Executive Branch is Statutorily

Required to and has been Prioritizing

Certain Groups of Potential Refugees

BU Into ciciseisiSeidh dea cassiiusbsniiemmerapnnapdoconie 23

Ill.Preferencing Adherents of Particular

Religions in the Context of the Refugee

Program Does Not Constitute Invidious

Discrimination Against Other Religions ...... 25

IV.Holding that Religious Preferences in

the Context of the Refugee Program

Violate the Establishment Clause Will

Result in Further Endangering the Most

TU i rae 32

CONCLUSION ................. saasannebashnnnehboah-ahed aniebagliddaaci 34

_ iti -

TABLE OF AUTHORITIES

Cases:

1756, Inc. v. Attorney General,

745 F. Supp. 9 (D.D.C. 1990) ..................

Ahmadshah v. Ashcroft,

396 F.3d 917 (8th Cir. 2005)...................

Almario v. Attorney General,

872 F.2d 147 (6th Cir. 1989)...................

Bangura v. Hansen,

434 F.3d 487 (6th Cir. 2006) ................0..

Carcieri v. Salazar,

555 U.S. 379 (2009) ........ OEE aD BG NA Jer MERTEN

Employment Division, Department of

Human Resources of Oregon v. Smith,

ee I enstntisctnssesesivensrictesete -

Fiallo v. Bell,

ey ee OD eciersnenscncescntenmstssemnenioned

Harchenko v. I.N.S.,

379 F.3d 405 (6th Cir. 2004) .........00000....

Harisiades v. Shaughnessy,

ly Se E fehnisocacesicsissnsevasdontanant

N.S. v. Cardoza—Fonseca,

Be a Pe EINE ncrccccncenenscescessncnsmanics

ILN.S. v. Elias—Zacarias,

BEE RP. Se CED ceciccsccnssccccnccccsoncsuenezes

Page(s):

ibbicieniinies 27

conan 27

- 14 —

LN.S. v. Stevic,

A i a pa iaemeakanmninions 3

Larson v. Valente,

RE ID: EES REO ee eee 25

Li Sheng Wu v. Holder,

Se Se Oe I EI, BR iciiins cece cinncccndedssuconveces 18

Lolong v. Gonzales,

484 F.3d 1173 (9th Cir. 2007).......... SEM ovale 18

Mathews v. Diaz,

EET NR RE SERED A SEE AI 31

Mejia—Paiz v. I.N.S.,

ee ee ROD casi nss ctieonnidinbemien ives’ 19

Nagoulko v. L.N.S.,

cae Oe Ce ee, BO ooins cnc necoscsevscoccosss 19

Reiter v. Sonotone Corp.,

ed ehdniginaevmsonesanens 27

Rosenberg v. Yee Chien Woo,

I cadaeintpebdadnneie 3

Sessions v. Morales—Santana,

og Sle A aA erie aree manne tars 30

Shah v. .N.S.,

SSO F.3a 1068 ths Cir. BOOO) ......0000.0cccccc..cccccess: 19

Trinity Lutheran Church of

Columbia, Inc. v. Comer,

4 S|, STARS een e eT 29

United States v. Flores—Villar,

536 F.3d 990 (9th Cir. 2008), aff,

I a ss ieeedaieaidanotenina 30

United States v. Vasquez,

Te ee ee Ce Ws Gv oooeve cred ecabcssesecasecdecccs. 27

Washington v. Trump,

No. 17-141 (W.D. Wash. Jan. 30, a, SORT 4, 25

Washington v. Trump,

2017 WL 462040 (W.D. Wash., Feb. 3, 2017),

stay denied by, 847 F.3d 1151 (9th Cir. 2017)...... 4

Zhou Ji Ni v. Holder,

G35 F.3d 1014 (7th Cir. 2011)............................. 19

Statutes:

RE di aa 25

ers agar oi) passim

I ie SS ad 26

er te I 8 ci) passim

I ne 24

EES Ee, 5

B UI.©. © RABBI IED oo ncecevnvccsecsssencecscscsesccoscccce. 5

Sr OP) ee 20

Nia RAO TET OE ea A I! ALES 23

EET I Re LIE ENS IRs ed Hes, 8 24

Regulations:

I OU goo le tet hr a 18

eT sr ET 18

GAs ID ono cccnancsccecseseessccseccecee. 32

ee Ee 19

Constitutional Provision:

| FC ae passim

tg ea

Administrative and Executive Materials:

EO-1 13,769

82 Fed. Reg. 8,977,

ey SE. EEE BD scascccnectonssesacespsveesers 4, 5, 23,28

EO 2 13,780

82 Fed. Reg. 13209 (Mar. 6, 2017) .............ceeeeeeeees 5

Legislative Materials:

118 Cong. Rec. 12,941 (Apr. 17, 1972) ............... eee 17

135 Cong. Rec. H3734 (July 13, 1989)............... 12, 23

H. Rep. No. 101-122, at 3—4 (1989) .................ceeeees 21

Statutes at Large:

Cuban Adjustment Act of 1966,

Pub. L. No. 89—732, 80 Stat. 1161 (1966)........... 20

Immigration Act of 1980,

ee I cnertesnaeuguoeeeseieles 8, 22

Immigration Act of 1990,

I ee mpsauell celal 20

Immigration and Nationality Act of 1952

Pub. L. No. 82—414,

I as cecelniesenan ns dempenvierieeih 8

Immigration and Nationality Act of 1957,

Pub. L. No. 85-316,

A chouil cahenignioeeieinen 7,8

Lautenberg Amendment,

Pub. L. No. 101—167,

103 Stat. 1195, 1266 (1988)...........scecceee--o0 passim

= vii —

Lautenberg Amendment,

Pub. L. No. 108-199, 118 Stat. 3, 253 (2004) ..... 23

Subversive Activities Control Act of 1950,

Pub. L. No. 81-831, 64 Stat. 1010 (1959).............. 8

International Material:

U.N. Office of High Comm’r for Human

Rights, “They Came to Destroy”: ISIS

Crimes against the Yazidis at

8-9, A/HARC/32/CRP.2 (2016)...........:.cceeeeeereeeeneees 14

U.S. Dep't of State, Jran 2015 International

Religious Freedom Report

Bi I ce 15, 16, 17

U.S. Dep’t of State, Proposed Refugee

Admissions for Fiscal Year 2017,

a IIE <i ceteveisusiddiipiabentedbepsoseibensenns ... 24, 25, 26

U.S. Dep’t of State, Syria 2015 International

Religious Freedom Report at 5 (2016)..........:.....:008+ 13

U.S. Dep’t of State, Yemen 2015 International

Religious Freedom Report at 6 (2016)..............+: 13, 14

Books:

Alex Inkeles, Social Change In

Soviet Russia, 254—65 (1968) ............ccccecsessscseeese 10

Documents on Ukrainian—

Jewish Identity and Emigration,

1944-1990, 200-01

(Vladimir Khanin, ed. 2002)...............:eeceeeeeees 10-11

— vill —

Richard S. Levy, Antisemitism: A Historical

Encyclopedia of Prejudice and Persecution

Se IE sic ic ddaduleacadddicdehidsebtishdsesdiveraens

Webster's Third New International

Dictionary of the English Language

NEE) IPUNE Fides cnn rntsp secesnrantdxécennnsssecsseseanee

Journals:

John Moroz Smith, The Jcon and the

Tracts: A Restrained Renaissance of

Religious Liberty in Ukraine,

2001 B.Y.U. L. Rev. 815, 820 (2001)................

Joseph Kulesa, Paradise Lost: The Impact of

the Changed Country Conditions in Post-

Soviet Ukraine on Pending Religious Asylum

Proceedings in the United States,

6 Rutgers J. L. & Religion 6, n.74 (2004) ........

Lance Hampton, Step Away from the Altar,

Joab: The Failure of Religious Asylum Claims

in the United States in Light of the Primacy of

Asylum Within Human Rights,

12 Transnat'l L. &

Contemp. Probs. 453, 462 (2002) .....................

Lynn D. Wardle, The "Withering Away" of

Marriage: Some Lessons from the Bolshevik

Family Law Reforms in Russia, 1917-1926,

2 Geo. J.L. & Pub. Pol'y 469, 480 (2004)..........

Nicholas Merlin, Jmmigration Policy and the

Expedited Removal Rule: “Equality for

Some, Justice for None”

16 St. Thomas L. Rev. 163, 165 (2008) ...............

ume

20

- i =

Note, The Cuban Adjustment Act of 1966:

3Mirando Por Los Ojos De Don

Quijote O Sancho Panza?,

114 Harv. L. Rev. 902, 910 (2001)...........c0.c...0e00 20

Victor Rosenberg, Refugee Status for Soviet

Jewish Immigrants to the United States,

19 Touro L. Rev. 419, 426—28 (2003) ............ 21, 22

Newspaper Articles:

Amanda Erickson, Russia just effectively

banned Jehovah's Witnesses from the country,

WashingtonPost.com,

2017 WLNR 12246791 (Apr. 20, 2017).............. 12

Amy Louise Kazmin,

Soviet Jews Study Their Lost Religion,

L.A. Times at Al4 (Sept. 14, 1989) .................... li

Eliza Griswold, Js This the End of

Christianity in the Middle East?,

N.Y. Times Magazine at 31 (July 22, 2015).. 15, 16

Michael Pizzi & Nuha Shabaan, Sunnis Fill

Rebel Ranks, but Also Prop Up Assad Regime,

USAToday.com (Aug. 1, 2013).............:eeeeeeees 17-18

Obituaries, Erhard Milch, 79, Luftwaffe Chief,

BE hc BUD GE Sree GT, By ROOD sv ccicc in ccciscescessescss 18

Reuters, Historian: Jewish

Officers Fought For Nazis,

Chicago Trib. at 14 (Apr. 3, 1997)...............cceee0 18

Websites:

Angus Crawford, Jraq's Mandaeans

“Face Extinction,” BBC (March 4, 2007), available

at http://news.bbc.co.uk/1/hi/world/middle_east

Si Is snndcsseppiesesvensscnneepnbinsubdesetssbaidansensel aneey ss 15

Jewish Telegraphic Agency, Russian

Prosecutors Raid Second Jewish Educational

Institution (June 15, 2015), available at

http://www.jta.org/2015/06/15/news-

opinion/world/russian-prosecutors-raid-

second-jewish-educational-institution-2.................. 12

Keith Armes, Chekists in Cassocks; The

Orthodox Church and the KGB, 1

Demokratizatsiya 72 (1991), available at

https://www?2.gwu.edu/~ieresgwu/assets/docs/

demokratizatsiya%20archive/01-04_armes.pdf....... 10

Zvi Gitelman, Why They Fought: What Soviet

Jewish Soldiers Saw and How It is Remembered

at 4, 20—21 (Nat’l Council for Eurasian and

E. European Research, 2011), available at

https://www.ucis. pitt.edu/nceeer/2011_824-

I laa ane is derligglamnnnd nba nees 11

https://www.uscis.gov/humanitarian/temporaryv—

I oc. os pausnedebcuiubeciadmensepacscnsae am

INTEREST OF AMICI CURIAE!

Amici curiae are groups and _ individuals

committed to upholding American ideals of providing

refuge to those persecuted on the basis of religious

beliefs.

Hardwired Globa! is a non—profit organization

dedicated to promoting religious liberty and

counteracting religion—based discrimination

worldwide.

Iraqi Christians Advocacy and Empowerment

Institute is a non—profit organization dedicated to

ensuring safety and human dignity of Iraqi

Christians and other minority groups both in Iraq and

the global Diaspora.

China Aid is an international non—profit Christian

human rights organization committed to promoting

religious freedom and the rule of law in China as well

as supporting Chinese Christians and their families

who have experienced persecution at the hands of

their government.

ihe Mandaean Human Rights Group is a non—

profit organization that works with Sabian Mandaean

community, an ethno-religious, ling»tistic minority

and an indigenous people from Irag and Iran.

1 No counsel for a party authored this brief in whole or in

part and no party of counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No persons other than amici curiae or their counsel

made a monetary contribution to its preparation or submission.

The parties have all either filed blanket waivers with the Court

or have explicitly consented to the filing of this brief.

sO

- ] Yazidi Organization is a non—

profit multi-national Yazidi global organization

established in the aftermath of the Yazidi Genocide in

2014, to support the Yazidi ethno-religious minority

and other vulnerable groups.

Gregory Dolin. lina Tsukerman, and Katherine

Litvak are former refugees from the former Soviet

Union who were beneficiaries of the Lautenberg

Amendment, Pub. L. No. 101—167, § 599D, 103 Stat.

1195, 1265 (1989).

Amici have no direct stake in the outcome of the

present litigation. Amici take no position on the

various provisions of the President’s Executive

Orders on immigration on direct appeal. Amici have

joined, however, to address a provision of those orders

raised in some lower courts, and that may factor into

the present litigation. Amici believe that it is entirely

proper for the United States to extend preferential

protection to persecuted adherents of minority

religions. In this brief, amici explain that such

preferences have been part of American refugee policy

for decades, are fully supported by statutory

language, do not offend the Establishment Clause,

and have been an effective tool to combat religious

persecution around the globe. Amici also highlight

the likely detrimental consequences on persecuted

religious communities if the Respondent’s and certain

other amici’s arguments concerning the alleged

incompatibility of religious preferences in refugee

cases and the Establishment Clause are accepted.

~~ 2

INTRODUCTION

The United States has a long and proud history of

sheltering those seeking refuge from oppression in

their home countries.

Since 1947 the United States has had a

congressionally enacted immigration and

naturalization policy which granted

immigration preferences to ‘displaced persons,’

‘refugees,’ or persons who fled certain areas of

the world because of ‘persecution or fear of

persecution on account of race, religion, or

political opinion.’ Although the language

through which Congress has implemented this

policy since 1947 has changed slightly from

time to time the basic policy has remained

constant—to provide a haven for homeless

refugees and to fulfill American

responsibilities in connection with the

International Refugee Organization of the

United Nations.

Rosenberg v. Yee Chien Woo, 402 U.S. 49, 52 (1971).

In recognition and continuation of that history and

tradition, in 1980, Congress passed, and the President

signed, a comprehensive Refugee Act. Pub. L. No. 96—

212, 96 Stat. 102 (1980). The Act (and predecessor

legislation) permits the Executive Branch to extend

asylum in the United States to those individuals who

have suffered “persecution or [have] a well—founded

fear of persecution on account of race, religion,

nationality, membership in a particular social group,

or political opinion.” Jd. § 201 (codified in 8 U.S.C. §

1101(a)(42)); see also I.N.S. v. Stevic, 467 U.S. 407,

414-421 (1984) (discussing refugee policy prior to

1980). Under the Act, only hardships resulting from

4 =

“persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion” serve as a basis for asylum. Jd. Other

hardships, no matter how severe, do not provide a

basis for asylum. See /.N.S. v. Elias—Zacarias, 502 U.S.

478, 481-83 (1992). Thus, a person displaced from his

home country as a result of war or natural disaster,

though a “refugee” in the colloquial sense of the term,

is not a “refugee” within the language of the

Immigration and Nationality Act. /d. at 482.

On January 27, 2017, President Trump issued

Executive Order No. 13,769 (“EOQ-—1”) which placed

certain restrictions on the admission of refugees into

the United States. Section 5(b) of that order directed

“the Secretary of State, in consultation with the

Secretary of Homeland Security ... to prioritize

refugee claims made by individuals on the basis of

religious-based persecution, provided that the

religion of the individual is a minority religion in the

individual's country of nationality.” Exec. Order

13,769, “Protecting the Nation From Foreign

Terrorist Entry Into the United States,” §5(b), 82 Fed.

Reg. 8,977, 8,979 (Jan. 27, 2017). Almost

immediately, the States of Washington and

Minnesota filed suit to enjoin § 5(b) and other

provisions of that order arguing that the section

violated the Establishment Clause of the United

States Constitution. See Complaint, Washington v.

Trump, No. 17-141 (W.D. Wash. Jan. 30, 2017), ECF,

1. The U.S. District Court for the Western District of

Washington agreed with the Plaintiffs and granted an

injunction, which the Ninth Circuit declined to stay.

Washington v. Trump, 2017 WL 462040 (W.D. Wash.,

Feb. 3, 2017), stay denied by 847 F.3d 1151 (9th Cir.

2017).

te pS

As the litigation over EO-1 was pending, President

Trump issued Executive Order No. 13,780 (“EO--2”)

which rescinded the original order and replaced it with

similar, but somewhat modified directive. Exec. Order

No. 13780, “Protecting the Nation from Foreign

Terrorist Entry Into the United States,” 82 Fed. Reg.

13209 (Mar. 6, 2017). Although EO-2 no longer directs

the Secretaries of State and Homeland Security to

“prioritize refugee claims made by individuals”

belonging to minority religions in their home country,

it clarified the reasons for EO—1 doing so. See EO—2, §

1(b)(iv). Given that statement, and given the separate

statutory requirement that available refugee visas be

“allocated among refugees of special humanitarian

concern to the United States in accordance with a

determination made by the President,” 8 U.S.C. §

1157(a)(3), the question of whether the Government

can preferentially grant asylum? to the adherents of

minority relitions remains live.

2 As a technical matter, a refugee and an asylee are not fully

synonymous. A refugee is someone who applies for a refugee visa

while outside of the United States, see 8 U.S.C. § 1101(a)(42),

whereas an asylee is someone who applies while within the

United States. Jd. § 1158(a). However, because the standard for

granting the application is the same in both cases, see td. §

1158(>)(1)(B)G), in this brief, the terms are _ used

interchangeably.

_

SUMMARY OF THE ARGUMENT

The United States has a long and proud history of

offering asylum to those seeking refuge from religious

persecution. This refuge is most often sought by those

who belong to minority faiths in their native land.

From the time of the Pilgrims and the Quakers,

America has been a safe haven for adherents of

minority religions.

That adherents of minority faiths are

disproportionally likely to seek asylum is not a

surprise. The ability to oppress rather than be

oppressed is frequently correlated with the relative

size of two populations. Because too many members

of too many faiths insist that the Truth of their faith

entitles them to oppress those who deny it, the

combination of religious differences and minority

status can serve as a pretext for brutality. The

decades-long policy of the United States, as

expressed in statutory language and executive

actions, has thus been to give preferences in the

processing of refugees to adherents of minority

religious faiths.

Such an approach is necessary because the

United States cannot admit every otherwise-

qualified person seeking asylum. Sadly, in any given

year, there are significantly more individuals in the

world persecuted “on account of race, religion,

nationality, membership in a particular social group,

or political opinion,” than can be admitted to the

United States. As a result, the Government must

select some rational basis for prioritizing the

admission and rejection of otherwise qualified

asylum seekers. Without denying the plight of any

asylum seeker, it is entirely reasonable to conclude

*

ms P

that adherents of minority religions face graver

dangers than do other refugees. Aligning United

States policy with that recognition fulfills the

Congressional command that asylum be extended to

“refugees of special humanitarian concern to the

United States,” and is fully consistent with the

Establishment Clause. A decision prohibiting the

government from extending particular solicitude to

the adherents of minority faiths would do more than

substitute the Court’s judgment for that of the

political branches. It would result in exposing those

most vulnerable to persecution to additional and

unjustifiable risk of harm.

ARGUMENT

I. Asylum is Inextricably Entwined with

Religious Practices.

Unlike most other government benefits, asylum is

often granted because of the applicant’s religious

beliefs. Indeed, “religion is the only universal basis

for asylum.” Lance Hampton, Step Away from the

Altar, Joab: The Failure of Religious Asylum Claims

in the United States in Light of the Primacy of Asylum

Within Human Rights, 12 Transnat'l L. & Contemp.

Probs. 453, 462 (2002) (emphasis added). Religion—

based asylum has been recognized from the earliest

days of the American colonies. The Quakers and

Mennonites settled in Pennsylvania after escaping

persecution in their home countries. The Roman

Catholics came to Maryland to avoid harassment in

Great Britain. Jews fleeing the Inquisition sought

haven in New York when it was still New Amsterdam.

Though there was no formal “refugee” status or

asylum procedure in the U.S. law until the middle of

the 20% century, see Pub. L. No. 85—316, 71 Stat. 639

ate

(1957),° the practice of admitting and preferencing

immigrants fleeing religious persecution has a much

longer pedigree.4

When Congress first defined “refugee,” it explicitly

conferred the status on people who fled their country

of residence because of persecution on “account of

race, religion, or political opinion.” Pub. L. No. 85—

316, § 15(c), 71 Stat. 639 (1957) (emphasis added).

This definition, though somewhat broadened,

remains the law today. See 8 U.S.C. § 1101(a)(42)

(defining “refugee” as someone persecuted “on

account of race, religion, nationality, membership in

a particular social group, or political opinion.”).

A. Adherents of Minority Faiths Are Most

Vulnerable to Persecution

Throughout history, minority faiths have suffered

ostracism or worse in repressive societies. It should,

therefore, be uncontroversial to note that in countries

3 In 1950, Congress prohibited removal] of aliens who would

be subject to physical persecution, but did not grant these

individuals any legal status, nor did it create a system for people

outside of the United States to apply for similar protections. See

Subversive Activities Control Act of 1950, § 23, 64 Stat. 1010

(1950). Similarly, the Immigration and Nationality Act of 1952,

gave the Attorney General the authority to withhold deportation

of people to places where they may be physically persecuted.

Again, this provision did not confer a legal status on the

beneficiary nor was it applicable to people outside of the United

States. See Pub. L. No. 82~414, § 243(h), 66 Stat. 214 (1952).

* Admittedly, the commitment to the “historic policy of ...

respond[ing] to the urgent needs of persons subject to

persecution in their homelands,” Pub. L. No. 96—212, § 101(a),

94 Stat. 102 (1980), has sometimes been honored more in the

breach than in practice.

i an

where people are persecuted “on account of race,

religion, nationality, membership in a particular

social group, or political opinion,” minorities falling

into one or more of those categories suffer the brunt

of the maltreatment.® Although examples sadly

abound, the amici wish to focus on two exemplars

with which they have special familiarity and which

provide an appropriate context for analyzing policies

that favor minority religions over others in the

context of immigration.

1. The Treatment of Jews and Other

Religious Minorities in the USSR

The former Soviet Union was well known for being

inhospitable to dissent in any form. Adherence to a

faith or philosophy other than Communism was

considered dissent. The Soviet government thus

destroyed entire religious communities. See Lynn D.

Wardle, The "Withering Away” of Marriage: Some

Lessons from the Bolshevik Family Law Reforms in

Russia, 1917-1926, 2 Geo. J.L. & Pub. Pol'y 469, 480

(2004). At best, the Soviets practied internal

deportation to remove religious adherents from their

usual places of abode. At worst, religious adherents

were executed.

Although the USSR was formally atheist,

traditional Russian Orthodoxy was tolerated and

sometimes coopted, particularly after the beginning of

— _

* Occasionally, a minority group will seize or possess enough

power and persecute the majority. Because such circumstances

are the exception rather than the rule, it is appropriate for U.S.

policy and law to address them on a case-by-case basis.

~ 20

World War II. See John Moroz Smith, The Jcon and

the Tracts: A Restrained Renaissance of Religious

Liberty in Ukraine, 2001 B.Y.U. L. Rev. 815, 820

(2001). On the other hand, minority religions,

including Ukrainian Catholic and Ukrainian

Orthodox churches, were suppressed, their property

confiscated, and their adherents jailed. See Alex

Inkeles, Social Change In Soviet Russia 254-55

(1968) (noting that “[a]ll of the minority religions

[had], of course, been the object of repressive

measures.”).

Most notorious, perhaps, was the Soviet treatment

of Jewish citizens. Some forms of discrimination were

legally codified, while others were practiced as a

result of secret Communist Party edicts. For

example, ritual circumcision—a rite practiced by the

Jewish community for millennia—-was forbidden.

Saturday school attendance was compulsory despite

the conflict with the Jewish Sabbath. See Joseph

Kulesa, Paradise Lost: The Impact of the Changed

Country Conditions in Post-Soviet Ukraine on

Pending Religious Asylum Proceedings in the United

States, 6 Rutgers J. L. & Religion 6, n.74 (2004).

Religious rites were virtually impossible to perform.

On Yom Kippur—the holiest day in the Jewish

calendar—the militia and plain—clothed KGB officers

often erected roadblocks and detained people on the

way to their synagogues. See Documents on

6 Indeed, many of the Soviet-era officials in the recognized

Russian Orthodox Church have long been thought to be officers in

the KGB. See Keith Armes, Chekists in Cassocks: The Orthodox

Church and the KGB, 1 Demckratizatsiya 72 (1991), available at

https://www?2.gwu.edu/~ieresgwwu/assets/docs/demokratizatsiya%2

Oarchive/01-04_armes.pdf.

~_ . rs

Ukrainian—Jewish Identity and Emigration, 1944—

1990, 200-01 (Vladimir Khanin, ed. 2002). Because

of the official hostility to Judaism, many cities with

sizable Jewish populations went years (or decades)

without any ordained rabbis to minister to the Jewish

community. See Amy Louise Kazmin, Soviet Jews

Study Their Lost Religion, L.A. Times at Al4 (Sept.

14, 1989). Institutions of higher learning had

“unspoken” and “unofficial” but very real quotas for

the admission of Jewish students, and certain

universities and jobs were all but closed to Soviet

Jews. See Richard S. Levy, Antisemitism: A Historical

Encyclopedia of Prejudice and Persecution (vol. 1) 725

(2005). With World War II having a central role in

the historiography of the USSR, the Soviet

government promoted the myth that Jews did not

serve in combat units and instead “lay low on the

home front.” See Zvi Gitelman, Why They Fought:

What Soviet Jewish Soldiers Saw and How It is

Remembered at 4, 20-21 (Nat’l Council for Eurasian

and E. European Research, 2011), available at

https://www.ucis.pitt.edu/nceeer/2011 824-03¢__

Gitelman pdf.

Although the Soviet government at various times

undertook campaigns against other minorities (e.g.,

Chechens and Crimean Tatars), the division of the

country into ethnically—based constituent Republics

and autonomous regions allowed most ethnic

minorities to constitute a majority in a part of the

country where such overt discrimination against

them became harder, if not altogether impossible.

Jews were among the few minorities lacking an

enclave within the USSR where they constituted a

majority (others included Evangelical Christians,

Ukrainian Catholics, and Ukrainian Orthodox).

a Tn

Discrimination against them was _ therefore

nationwide.? See 135 Cong. Rec. H3734 (July 13,

1989) (statement of Rep. Lipinski).®

2. The Treatment of Religious Minorities in

Some Middle Eastern Countries

Because portions of the challenged Executive

Order relate exclusively to Muslim—majority

countries in the Middle East and North Africa, the

conditions under which that region’s minority faiths

labor should be discussed. The Department of State

and various NGOs agree that minority faiths are

heavily discriminated against in that part of the

world.

For example, according to a Department of State

report on Syria, “[t]he Alawite—led government and

its Shia militia allies killed, arrested, and physically

abused Sunnis and members of targeted religious

? Although in 1928, the Soviet government established the

Jewish Autonomous District around the Far East city of

Birobidzhan, at no point did the Jewish population of the

“Jewish Autonomous District” exceed 17% of the region’s total

population. This is because the district was intentionally

established in a region that was geographically remote from any

Jewish population centers.

8 As a result of continued discrimination of minority faiths

in present day Russia, see, e.g., Amanda Erickson, Russia just

effectively banned Jehovah’s Witnesses from the country,

WashingtonPost.com, 2017 WLNR 12246791 (Apr. 20, 2017);

Jewish Telegraphic Agency, Russian Prosecutors Raid Second

Jewish Educational Institution (June 15, 2015), available at

http://www. ita. erg/20 13/06/15/news-opinion/world/russian

-progecuturs-raid-second-jewish-educationsal-institulien-2, the

U.S. government has continued to extend preferential

treatment to adherents of certain minority faiths in Russia.

See Part II.A, post.

co Eas

minority groups, and intentionally destroyed their

property.” U.S. Dep't of State, Syria 2015

International Religious Freedom Report at 5 (2016).

Although the government of Syria continues to

tolerate Christians, non-state actors such as ISIS®

have “tortured and beat [Christians in a village near

Aleppo] before crucifying them.” See id. at 10. The

minority Druze community has suffered a similar

fate. Id. The victims have been targeted solely for

their faith. Jd. The small Jewish communities of

Aleppo and Damascus have likely ceased to exist. Jd.

at 2~-3. ISIS has also committed atrocities against

Shiites, allegedly in retaliation for “the government's

‘massacres of Sunnis.” Jd. at 9. However, unlike the

Christian, Jewish, or Druze population of Syria, the

Shia who are threatened by ISIS are at least

somewhat able “to relocate to _ traditional

[government] strongholds.” /d. at 14. It is only the

powerless minority religions who can find no refuge

anywhere in Syria.

The plight of minority religions in Yemen is also

deplorable. For example, the small Jewish

community has endured “continued harassment ... by

the local population, including [] throwing stones and

coercion to convert to Islam. Jewish students

reportedly continued to stay away from public schools

due to social pressures and security concerns.” U.S.

Dep’t of State, Yemen 2015 International Religious

Freedom Report at 6 (2016). The “concerns over

8 Islamic State in Iraq and Syria (ISIS) is also known as

Islamic State in Iraq and Levant (ISIL) or by its name in Arabic,

al—Dawla al—Islamiya fi al-Iraq wa al-Sham, abbreviated as

Daesh. It is the latter name that the State Department uses in

its reports.

fig ae

security and the children’s future” has prompted

“members of the Jewish community [to] depart]

Yemen” and become displaced persons. Id.

Christians in Yemen have seen their spiritual leaders

flee and their churches burned. Jd. Members of the

Bahai faith have been arrested, tortured, and held

without charges for indefinite periods. Jd. at 1, 3—4.

All of these groups, together, comprise less than 1% of

the Yemeni population, and have nowhere within

Yemen to seek protection. Jd. at 2.

Iraq is a home to a number of minority religious

communities, and is also a place where some of the

worst atrocities against the adherents to minority

faiths is taking place. As the United Nations Office of

High Commissioner for Human Rights reports, ISIS

fighters have conducted mass executions of Yazidi

men and teenage boys, while forcing women and

children to watch. U.N. Office of High Comm/’r for

Human Rights, “They Came to Destroy”: ISIS Crimes

against the Yazidis at 8-9, A/HRC/32/CRP.2 (2016).

The survivors were forcibly converted to Islam. Jd. at

9. Women and girls between the ages of nine and

sixty have been sold into sexual slavery, id. at 9-16,

while women over the age sixty have been summarily

executed. Jd. at 11. Young children have been

routinely beaten, molested, and, in case of males,

conscripted to fight as child soldiers. Jd. at 16-19.

ISIS has attempted to destroy the entire Yazidi

culture through the destruction of temples and

shrines, id. at 19, and forcibly transferring the Yazidi

population out of their ancestral homes. Jd. These

horrors have been visited on the Yazidi community

solely because they are Yazidi. The Sunni Arabs of

the region have not been subjected to the same

treatment at the hands of ISIS. See, e.g., id. at 30 (“No

~ oa

other religious group present in ISIS-controlled areas

of Syria and Iraq has been subjected to the

destruction that the Yazidis have suffered. Arab

villagers who did not flee Sinjar in advance of the ISIS

attack were allowed to remain in their homes, and

were not captured, killed, or enslaved.”).

Nor are the Yazidis the only minority faith that is

facing virtual annihilation in Iraq. For example, Iraqi

Mandaeans’° who until recently numbered between

60,000 and 70,000 are now “facing extinction” as a

result of rehgion—based attacks by ISIS. See Angus

Crawford, Iraq's Mandaeans “Face Extinction,” BBC

(March 4, 2007), available at http://newa.bbe.

co.uk//hi/world/middle east/6G412453.stm. In Iraqi

regions overrun by ISIS, Christians were given “a

choice: They could either convert or pay the jizya, the

head tax levied against all ‘People of the Book’:

Christians, Zoroastrians and Jews. If they refused,

they would be killed, raped or enslaved, their wealth

taken as spoils of war.” Eliza Griswold, Js This the

End of Christianity in the Middle East?, N.Y. Times

Magazine at 31 (July 22, 2015).

Unlike Syria, Yemen and Iraq, Iran is not in the

midst of a civil war. Yet the mistreatment of religious

minorities in Iran is both common and well

documented. The Iranian government has repeatedly

confiscated non—Islamic religious texts, including

Bibles. U.S. Dep’t of State, Jran 2015 International

10 Mandaeans are adherents of Mandaeism, a Gnostic

religion that developed in t e first three centuries of the

Ccmmon Era. See generaily Kurt Rudolph, Madaeism (Brill,

1978).

~~” a

Religious Freedom Report at 13—15 (2016). In 2015,

“Christians, particularly evangelicals and converts,

continued to experience disproportionate levels of

arrests and high levels of harassment and

surveillance,” and are required to register with the

police and are prohibited from holding services on any

day other than Sunday. Jd. at 13. The Bahai

community is particularly hard-hit. They “are

banned from government employment and from all

leadership positions in the military. They are not

allowed to participate in the governmental social

pension system. Bahais cannot receive compensation

for injury or crimes committed against them and

cannot inherit property.” Jd. at 6. The Bahais are

often prosecuted on trumped—up charges, they cannot

assemble, be employed in a number of professions, or

bury their dead in accordance with their customs. Id.

at 9-10, 15, 18-19. Numbering less than one—half of

one percent of the population, the Bahai have no

ability to protect themselves in Iran. Indeed,

“falccording to law, Bahai blood may be spilled with

impunity, and Bahai families are not entitled to

restitution,” whereas “(t]he law authorizes collection

of ‘blood money’ as restitution to families for the death

of Muslims.” Jd. at 2. 7.

Other Middle Eastern states, especially those

where ISIS is active, also present peculiar and

heightened dangers to individuals professing a

minority faith (7.e., Christianity, Bahai, Judaism,

disfavored sects of Islam, and others). Adherents to

minority religions within the region face a

significantly higher risk of violence and death from

both government and non—government actors than do

followers of the majority religion. See Griswold, End

of Christianity, supra.

i =

B. Proving Individualized Persecution on the

Basis of Religion is Often Quite Hard, Even for

Members of Minority Religions

While discrimination against members of minority

faiths writ large is a common occurrence in certain

regions, it does not mean that every adherent of that

faith is personally persecuted.

Some Soviet Jews succeeded despite the obstacles

the government placed in their way. There were

Jewish doctors, lawyers, musicians, chess champions,

etc. See 118 Cong. Rec. 12,941 (Apr. 17, 1972)

(statement of Rep. Halpern).

In Saddam Hussein’s Irag, Deputy Prime Minister

Tariq Aziz was a Chaldean’ Christian,

notwithstanding the regime’s heavy anti-Christian

discrimination—including the ethnic cleansing of

several towns during the Anfal campaign of 1988.

Iran reserves at least three parliamentary seats for

Christians, notwithstanding the Iranian

government’s harassment of Christian churches and

the limitations it places their ability to function. Jran

2015 Report, supra at 5.

In Syria, though the Assad regime has abused and

discriminated against Sunni Muslims, many Sunnis

support the regime in large part because of the

success they have achieved as individuals. See

Michael Pizzi & Nuha Shabaan, Sunnis Fill Rebel

Ranks, but Aise Prop Up Assad_ Regime,

USAToday.com (Aug. 1, 2013).!!

11 This sort of alliance between individual Sunnis and an

anti-Sunni regime reiterates one of the differences between a

targeted minority faith and a targeted majority. A minority

- 18 —

Though evidence of life under ISIS remains

sketchy, it is likely that at least some non—Sunnis

escape individualized discrimination. After all, even

Nazi Germany could point to a Field Marshal with a

Jewish parent—Erhard Milch.!2 See Obituaries,

Erhard Milch, 79, Luftwaffe Chief, N.Y. Times at 32

(Jan. 29, 1972).

Discrimination against a group thus need not

translate into discrimination against every member of

that group. Asylum seekers hoping to avail

themselves of American protection, however, must

show that they have personally “suffered past

persecution or ... ha[ve] a well-founded fear of future

persecution ... on account of race, religion,

nationality, membership in a particular social group,

or political opinion” as an individual. 8 C.F.R. §

208.13(b); Li Sheng Wu v. Holder, 737 F.3d 829, 832

(lst Cir.2013); Lolong v. Gonzales, 484 F.3d 1173,

1178 (9th Cir. 2007); Harchenko v. I.N.S., 379 F.3d

405, 410 (6th Cir. 2004). The burden of proving this

fear rests with the applicant. 8 C.F.R. § 208.13(a);

I.N.S. v. Cardoza—Fonseca, 480 U.S. 421, 456 (1987).

In many circumstances then, applicants are

unable to show individualized “past persecution.” Cf.

regime seeking to govern a country where another group

constitutes a significant numeric majority must find many allies

among its majority citizens. Such alliances are far less

imperative for a majority group dominating a minority.

'2 The legal machinations that permitted Milch to escape the

fate of other Jews and to climb the highest rungs of German

military command caused Hermann Goering to famously quip “I

decide who is a Jew.” Reuters, Historian; Jewish Officers Fought

For Nazis, Chicago Trib. at 14 (Apr. 3, 1997).

38

Nagoulko v. I.N.S., 333 F.3d 1012, 1017 (9th Cir.

2003) (finding that witnessing the beating of co-

workers is insufficient to establish past persecution);

Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir.

2011) (“[AJn asylum applicant cannot rely on

“derivative persecution” to establish that he was

subjected to persecution in the past.”).

The “well—founded fear of future persecution”

would be equally difficult to prove if each applicant

were required to show that he personally received

threats of harm “because, ‘an authentic refugee is

often limited in his ability to offer direct corroboration

of specific incidents of persecution.” Shah v. IL.N.S..

220 F.3d 1062, 1070 (9th Cir. 2000) (quoting Mejia-—

Paiz v. I.LN.S., 111 F.3d 720, 722 n. 1 (9th Cir.1997));

see also Ahmadshah v. Ashcroft, 396 F.3d 917, 920—21

(8th Cir. 2005). For this reason, regulations

implementing the Congressionally—created system

for admitting refugees permits an applicant to carry

the burden by showing that he or she belongs to a

group of persons against whom “there is a pattern or

practice ... of persecution ... on account of race,

religion, nationality, membership in a particular

social group, or political opinion” in the applicant's

home country. 8 C.F.R. 208.13(b)(2)(iii). In other

words, when it comes to discrimination on the basis of

religion, showing that the applicant is an adherent of

a persecuted faith may suffice to qualify for asylum.

Il. Preferences For Persecuted Religious

Minorities Have Long Been Part of the U.S.

Law

Congress, the Executive Branch, and the courts

have long realized that in many instances it will be

nearly impossible for an asylum seeker to prove

~~

individualized persecution. As a result, Congress has,

on numerous occasions, exhibited particularized

concern for individuals in certain social groups by

providing them with an eased path towards asylum.

The earliest example of such solicitude is the Cuban

Adjustment Act of 1966, passed in the wake of

Communist takeover of Cuba. Pub. L. No. 89—732, 80

Stat. 1161 (codified as amended at 8 U.S.C. § 1255

(2017)). The revolution caused a number of Cubans to

go into exile. “In order to enhance the resettlement of

refugees, Congress passed the Cuban Adjustment Act

of 1966, providing for employment and education,

opportunities not generally accorded other refugee

groups.” Nicholas Merlin, Immigration Policy and the

Expedited Removal Rule: “Equality for Some, Justice

for None”, 16 St. Thomas L. Rev. 163, 165 (2003).

Recognizing the brutality that Communist dictators

often visited upon opponents (or even suspected

opponents) of the regime, Congress resolved to

provide preferential treatment to Cuban exiles,

without extending the same to asylum seekers from

other parts of the world. See Note, The Cuban

Adjustment Act of 1966: sMirando Por Los Ojos De

Don Quijote O Sancho Panza?, 114 Harv. L. Rev. 902,

910 (2001). The courts have uniformly rejected the

numerous challenges to that Act. See Merlin, supra,

at 165; 177-80.

More recently, Congress has created specia!

privileges for additional groups. See, e.g.,

Immigration Act of 1990, Pub. L. No. 101—649, § 303

(granting Temporary Protected Status to citizens of

El Salvador). Of particular relevance to the present

case is Congress’ action in 1989, when it enacted what

became known as the “Lautenberg Amendment.”

= BE ax

Pub. L. No. 101-167, § 599D, 103 Stat. 1195, 1265

(1989).

A. The Lautenberg Amendment is a Strong

Precedent for Extending Preferential

Treatment to Minority Religions

In the late 1980s, with the loosening of emigration

rules in the Soviet Union, the number of Soviet

citizens (especially Jewish ones) seeking asylum in

the United States rose quickly. H. Rep. No. 101—122,

at 3—4 (1989). Unsurprisingly, the number of cases

lacking material proof of individualized past or future

persecution witnessed a corresponding increase.

Victor Rosenberg, Refugee Status for Soviet Jewish

Immigrants to the United States, 19 Touro L. Rev.

419, 426-28 (2003). Some American officials argued

that a large portion of the Sov’ :t Jewish émigrés were

not “refugees,’ but ‘| ] rather, prospective immigrants,

and as such, they should enter this country according

to the requirements of our own immigration laws.”

Id. at 427 (quoting written testimony of Immigration

and Nationalization Service Commissioner Alan

Nelson).

As a result, the percentage of Soviet Jewish

applicants denied refugee status grew from barely 1%

to a high of 37%. H. Rep. No. 101-122, at 5. At the

same time, the discriminatory policies of the Soviet

government, see Part 1.A.1, ante, continued. H. Rep.

No. 101—122, at 3.

Congress responded to this dilemma by passing

legislation giving preferential treatment to Soviet

citizens belonging to several minority religions. Pub.

L. No. 101—167, § 599D, 103 Stat. 1265. The

Lautenberg Amendment (named after its chief

sponsor, Sen. Frank Lautenberg) lowered the burden

ml ke

of proof required to obtain asylum for Soviet Jews,

Evangelical Christians, Ukrainian Catholics, and

Ukrainian Orthodox. Jd. Followers of these minority

religions no longer had to prove a “well—founded fear

of persecution,” but merely to “assert[ ] such a fear

and assert[{] a credible basis for concern about the

possibility of such persecution.” Jd. § 599D(b)(2)(A-—

B). Other Soviet citizens did not receive the same

preferential status.!3

The legislative history of this provision explains

why Congress felt it necessary to treat adherents of

some religions differently from others. For instance,

presaging the passage of the Amendment, a majority

of U.S. Senators urged the Administration to classify

“all Soviet Jews as refugees,” because of “the history

of anti-Semitism in Russia and the Soviet Union.”

Rosenberg, supra at 432. The House Judiciary

Committee report accompanying one of the bills that

eventually became the Lautenberg Amendment noted

that although “[tj]he Soviet state has always

maintained a _ hostile stance toward religion,”

including the Russian Orthodoxy, “Soviet Jews and

Evangelicals” were subject to particular hardships.

H. Rep. 101-122, at 5. At the same time, the report

recognized that the “United States does not have the

capacity to accept all Soviet citizens who wish to

emigrate....”. Jd. Given the limited capacity, the

Committee believed that groups subject to particular

hardships should be prioritized. Jd. Recognizing the

tenuous status of Soviet reforms and the precarious

‘8 The Lautenberg Amendment also offered the same status

to certain categories of the citizens Vietnam, Laos, and

Cambodia. Pub. L. No. 101-167, § 599D(b)(2)(C).

i.

position of the minority religions, Congress ultimately

passed the Act, though it acknowledged that there

had been “tremendous improvement in terms of

religious practices in the Jewish community as well

as Jewish emigration patterns; Jand) in terms of

Baptists and Evangelicals being allowed to establish

their own seminary and publish their own literature,”

as well other religious practices. See 135 Cong. Rec.

H3735 (July 13, 1989)(statement of Rep. Henry). In

doing so, Congress explicitly rejected the argument

raised by the opponents of the bill that the approach

violates the “fundamental principle of treating all

immigrants equally.” Jd. (statement of Rep. Smith).

In keeping with the original purpose of aiding

particularly vulnerable religious minorities, the

Lautenberg Amendment’s coverage has expanded

since it was passed. In 2004, Congress extended it to

include religious minorities in Iran. Pub. L. No. 108—

199, § 213(1)(C), 118 Stat. 3, 253 (2004).

B. The Executive Branch is Statutorily Required

to and has been Prioritizing Certain Groups of

Potential Refugees for Decades

Even though, unlike the Lautenberg Amendment,

Section 5(c) of the EO—1 was not enacted by Congress,

it stands on equally strong footing. As an initial

matter, INA § 207(a)(3) directs the President to

allocate the admission slots “among refugees of

special humanitarian concern to the United States.”

8 U.S.C. § 1157(a)(3). This direction necessarily

means that while there may be individuals who are

eligible for refugee status, they may not receive a visa

because they are not of “special humanitarian

concern.”

a

The Department of Homeland Security has

followed that Congressional direction by establishing

three separate priority tiers for the admission of

refugees. The first order priority is reserved for

individualized cases and is available for “persons ...

with compelling protection needs, for whom

resettlement appears to be the appropriate durable

solution.” U.S. Dep't of State, Proposed Refugee

Admissions for Fiscal Year 2017, at 7 (2016) (“FY 2017

Admissions”). The second order priority is given to a

particular group of people based on “whether the group

is of special humanitarian concern to the United States

and whether individual members of the group will

likely be able to qualify for admission as refugees

under U.S. law.” Jd. at 8. As required by INA § 207(d)

and 8 U.S.C. § 1157(d), these designations are updated

on a yearly basis. /d. at 1. Furthermore, new “[g]roups

may be designated as Priority 2 during the course of

the year as circumstances dictate, and the need for

resettlement arises.” Jd. at 8. Currently, this category

includes, inter alia, beneficiaries of the Lautenberg

Amendment with close family in the United States,

members of persecuted religious minorities from Cuba

and Iran, certain categories of ethnic minorities from

Burma, Bhutanese living in Nepal, and Congolese

living in Rwanda. ZJd. at 9-11.!4 The designation of

other religious minorities for priority treatment is

consistent with the requirements of INA § 207 and

historical practice of the Executive Branch.

‘4 The third priority tier is reserved for “to members of

designated nationalities who have immediate family members in

the United States who initially entered as refugees or were

granted asylum.” FY 2017 Admissions, supra, at 12. Currently,

22 nationalities are eligible for this tier. Jd. at 14.

wo enw

Ill. Preferencing Adherents of Particular

Religions in the Context of the Refugee

Program Does Not Constitute Invidious

Discrimination Against Other Religions

The Respondents have argued that giving

preference in refugee admissions to the adherents of

minority religions impermissibly “tilt[s] the scales in

favor of Christian refugees at the expense of

Muslims.” Motion for TRO, at 12, Washington v.

Trump, No. 17—141 (W.D. Wash. Jan. 30, 2017), ECF,

3. According to the Respondents, this violates the

Establishment Clause because “one religious

denomination cannot be officially preferred over

another.” Jd. at 11 (quoting Larson v. Valente, 456

U.S. 228, 244 (1982)). Such an approach is contrary

to history and inconsistent with the principles

underlying longstanding American refugee policy.

The United States refugee policy is based on

several principles. First, individuals are eligible for

asylum only if they are persecuted “on account of race,

religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. §

1101(a)(42). Though other individuals may be in dire

straits because of war or natura] disasters in their

home country, as a matter of law they do not qualify

for the refugee status.!®

15 Individuals who experience threats to personal safety as

a result of an armed conflict or natural disaster may be

eligible to obtain Temporary Protected Person status (“TPS”).

See 8 U.S.C. § 244. Currentiy, 10 countries are designated for

TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua,

Somalia, Sudan, South Sudan, Syria, and Yemen. See

hitps://www users. gov/humanitarian/eyporsrey—-prerected—status.

=

The second principle recognizes that the United

States cannot admit all those who would otherwise

qualify for asylum. Congress has thus required the

President to set an annual limit on the number of

refugee admissions. 8 U.S.C. § 1157(a)(2). That limit

is consistently set far below the number of people who

could potentially qualify for refugee status. For

example, the current conflict in Syria alone has

produced over 6 million displaced persons.'®

Undoubtedly, many of these individuals fled Syria

because of the dangers of war, rather than

persecution “on account of race, religion, nationality,

membership in a particular social group, or political

opinion.” Nonetheless, even if only 5% of the total

number fled because of persecution, that number of

individuals would be nearly three times the entire

Fiscal Year 2017 refugee limit.'? See FY 2017

Admission, supra at 5.

'6 According to the U.N. High Commissioner for Refugees,

“there are at least 10 million people worldwide who are not

recognized as nationals of any state and are therefore stateless.”

FY 2017 Admissions, supra, at 2. Because of their status, these

individuals are deprived of basic civil rights including ability to

“access police protection and systems of justice.” Jd. Many of

these individuals could qualify for asylum in the US, id.:

however, the United States cannot possibly admit all of these

individuals.

‘7 The FY 2017 limit itself is the highest annual limit in over

20 years, see Department of State, Office of Admissions—

Refugee Processing Center, Refugee Admissions by Region

Fiscal Year 1975 through 30-Jun-2017, available at

JAwwew wa psnet.org/s/Granh—Refuvee—Ad missions—since—

19 7 5 7 317 Xs.

~ 97 —

The third principle follows directly from the

second. Recognizing that the United States cannot

absorb all of the world’s refugees, Congress has

directed the President to allocate the admission

slots “among refugees of special humanitarian

concern to the United States.” 8 U.S.C. §

1157(a)(3)(emphasis added). Something is special

only when it is “[dJjistinguished by some unusual

quality.” Webster's Third New International

Dictionary of the English Language 2186 (3d

ed.1961) (1986 rptg.); see also 1756, Inc. v. Attorney

General, 745 F.Supp. 9, 14 (D.D.C. 1990) (“An item

is special only in the sense that it is not

ordinary...”); United States v. Vasquez, 279 F.3d 77,

81 (1st Cir. 2002)(recognizing that “special” is a

synonym of “unusual or atypical.”). All persecuted

individuals in the world certainly deserve sympathy

and, where possible, help. But not every such

individual is of “special” or “unusual” humanitarian

concern to the United States. A construction that

established a single level of concern applicable to all

persecuted persons would impermissibly “rob the

term ‘[special’] of its independent and ordinary

significance,” Reiter v. Sonotone Corp., 442 U.S. 330,

338-39 (1979). Because courts “are obliged to give

effect, if possible, to every word Congress used,”

Carcieri v. Salazar, 555 U.S. 379, 391 (2009)

(quoting id. at 339), such a construction would be

erroneous.

These three principles, which together form the

basis of U.S. refugee policy, emphasize the need to

choose whom to admit. Because choosing people who

are particularly vulnerable to persecution because of

their status as a religious minority is consistent with

America’s core principles and history, it has been

Tae os

American policy for decades. President Trump’s

Executive Orders simply continue and reiterate that

policy.

Respondent’s complaint that Section 45(b), which

operates worldwide, see EO-2, § 1(b)(iv), favors

Christians “at the expense of Muslims” makes sense

only if the majority of the world’s refugees arrive

fleeing Muslim-majority countries.'* As a matter of

simple math, the principle of favoring targeted

minority faiths can work against Muslims only if

Muslims are responsible for the majority of the

discriminatory targeting.

The logic driving Respondents’ argument is thus

disturbing on two points. First, Respondents simply

presume the disproportionate culpability of Muslims

in creating the world’s refugees. Second, Respondents

argue that the Establishment Clause prohibits

American immigration policy from preferencing

people facing discrimination if and only if the

discrimination is rooted in religion. We share neither

Respondents’ dismal opinion of Muslims nor their

‘8 While Muslims from the Middle East may be

disadvantaged, Muslims fleeing most countries in Europe, East

Asia, Sub-Saharan Africa, or the Americas would be

preferenced. See EO-2, § 1(b)(iv). Furthermore, § 5(b) does not

preclude the recognition that there are different strains within

Islam and that, for example, [ranian Sunni Muslims or Saudi

Arabian Shia Muslims, each being a minority within their

respective countries, may benefit from preferences for minority

religions. Jd. Furthermore, even if EO-1’s § 5(b) were limited to

the Middle East, and even if it treated Islam as a uniform whole,

the Respondents are incorrect in their assertion that the

minority preference provision benefits only Christians. The

Bahai, Yazidis, Jews, and other minority faiths would reap the

same benefits.

—

inverted reading of the First Amendment. Cf. Trinity

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

Ct. 2012, 2021 (2017) (“Free Exercise Clause did

guard against the government's imposition of ‘special

disabilities on the basis of religious views or religious

status.” (quoting Employment Division, Department

of Human Resources of Oregon v. Smith, 494 U.S.

872,877 (1990)).

Furthermore, Respondents have not differentiated

between the preferences at play here and those in the

Lautenberg Amendment, special policies that give

preferences to Cuban refugees, or any other group

that currently receives preferences in refugee

processing. Preferences do not automatically

incorporate invidious discrimination. Rather, they

indicate an American government offering refuge to

the people it has determined need it most (without

disregarding the very rea! suffering of others).

Because adherents of minority faiths are least likely

(at least among those claiming persecution on the

basis of religion) to be in a position to protect

themselves, prioritizing their applications over others

is not only entirely consistent with the Constitution,

the statutory language, and historical practice, it is

indeed the only way to allocate the available refugee

slots on the basis of relative need. The only

alternative would be some form of lottery among those

who qualify for asylum, thus giving everyone an equal

chance at a refugee visa. Such a luck-based approach

would ignore the Congressional edict that

“{aJdmissions [of refugees] shall be allocated among

refugees of special humanitarian concern to the

- 30 —

United States.” 8 U.S.C. § 1157(a)(3).'9 In addition,

Congress explicitly rejected such an approach during

the debates leading to the Lautenberg Amendment.

See Part II.A, ante.

Finally, while it is true that not every adherent of

a minority faith always has higher risk of persecution

than every follower of a majority religion, and

therefore preferences to the former group may well be

over—inclusive, Congress is not required to create a

perfect system for. prioritizing immigration

applications. See United States v. Flores—Villar, 536

F.3d 990, 996 (9th Cir. 2008), affd, 564 U.S. 210

(2011) and abrogated on other grounds by Sessions v.

Morales—Santana, 137 S. Ct. 1678 (2017) (holding

that “in light of the virtually plenary power that

Congress has to legislate in the area of immigration

19 It is ironic that in the days immediately following

President Trump’s issuance of EO-1, numerous press reports

drew upon the experience of the MS St. Louis. The 900

passengers on that ship were Jews fleeing Nazi Germany in

1939-—-shortly before the outbreak of the second World War.

Because of immigration quotas then in place, the U.S. rejected

their petitions for admission, and returned them all to Europe.

Nearly all contemporary commentators view FDR’s decision in

this matter as a tragic error—almost certainly employing

hindsight bias about the genocide awaiting their return. Yet

under the standard that Respondents urge, the passengers of the

St. Louis would have qualified merely as German citizens

complaining about the regime then running their country—not

Jews fleeing an imminent campaign of extermination.

as//iwww.th nrc con/palitics/archive/201 7/O1/jewish-

refugees-in-the- nalb14742/

https: Ihererer. washingtonpost.com/news/post-nation/wp/201 7/01

/29/a-ship-full-of-refugees-fleeing-the-nazis-once-begged-the-u-

s-for-entry-they-were-turned-back/?utm_term=.5dd72530bfa6 .

and citizenship” its classifications survive judicial

review even when “the fit is not perfect.”).

It is well settled that “in the exercise of its broad

power over immigration and _ naturalization,

‘Congress regularly makes rules that would be

unacceptable if applied to citizens.” Fiallo v. Bell, 430

U.S. 787, 792 (1977) (quoting Mathews v. Diaz, 426

U.S. 67, 80 (1976)). Courts “uphold[] immigration

statutes so long as they are ‘conceivably related to the

achievement of a federal interest.” Bangura ov.

Hansen, 434 F.3d 487, 495 (6th Cir. 2006) (quoting

Almario v. Attorney General, 872 F.2d 147, 152 (6th

Cir, 1989)). Thus, although in a given year,

preferencing adherents of minority religions may

come “at the expense of Muslims,” “[t]hose are ... the

consequences of the congressional decision not to

accord preferential status to this particular class of

aliens,” a “decision [that] remains ... ‘solely for the

responsibility of the Congress and wholly outside the

power of this Court to control.” Fiallo, 430 U.S. at

788-89 (quoting Harisiades v. Shaughnessy, 342 U.S.

580, 597 (1952) (Frankfurter, J., concurring)).

Congress gave the President the authority to

designate particular groups as being of “special

humanitarian concern” to the United States. 8 U.S.C.

§ 1157(a)(3). Bestowing this status on adherents of

minority faiths is both reasonable and consistent with

long-standing practices. The Court should not stray

from precedent. The Court should allow the politica!

branches to determine which groups are most in need

of American protection. Indeed, the Appellants can

cite no case from any court holding that religion—

based preferences in any immigration context violate

the Establishment Clause.

—

IV.Holding that Religious Preferences in the

Context of the Refugee Program Violate the

Establishment Clause Will Result in Further

Endangering the Most Vulnerable Groups

A decision holding that the Constitution prohibits

preferencing adherents of minority religions in the

asylum context would be worse than merely contrary

to this Court’s own precedents and decades of

Congressional and Executive Branch practice. It

would further endanger the very individuals most in

need of American protection.

It does not diminish the plight of millions of

displaced persons throughout the world to

acknowledge that the adherents of minority religious

faiths often have nowhere to go in their home

countries. In the Middle East, most Sunni and Shia

Muslims can find at least some semblance of

protection in certain parts of their home countries.

Adherents of minority faiths often cannot.2° Whereas

Syria, lraq, and numerous other countries in the

Middle East and North Africa have both majority—

Sunni and majority-Shia areas and cities, the

region’s many other faiths have no such sanctuaries.

Jews have been all—but—eliminated from every

country in the region, and consolidated into Israel.

Christian majority areas exist only in Lebanon, and

to a far smaller extent, Egypt. The Bahai, Yazidis,

and numerous smaller religions are majorities

nowhere. See Part I.A.2, ante.

20 In some cases, if internal relocation is feasible, the applicant

may be denied asylum. See 8 C.F.R. § 208.13(b)(1)(i)(b).

33

The sad but fundamental truth is that the United

States cannot accept every refugee seeking admission

and cannot save every person in need of saving. Hard

and heart-wrenching choices need to be made.

Everyone appears to be in agreement that, given a

ceiling on the number of refugee admissions, the

process is in essence a “zero-sum game,” in which the

grant of asylum to one person means someone else

eligible for the same status will not get it. By calling

into question preferential treatment for the adherents

of minority faiths, all the Court will do is substitute

its own choices for those of Congress and the

Executive Branch. Withdrawing these preferences

will not allow more people to enter the United States.

It will simply redistribute the probability of

admission from some people and groups to others.

Worse still, though the availability of asylum is a

“zero-sum game,” the effect of it is not. For instance:

granting a refugee visa to someone who is not

persecuted denies that slot to someone who is

persecuted. The number of refugees admitted does

not change, but admitting an unqualified person

condemns the qualified one whose slot was given

away to continued privations and possibly even death

at the hands of his oppressors. This outcome would

undermine “the historic policy of the United States to

respond to the urgent needs of persons subject to

persecution in their homelands,” Pub. L. No. 96-102,

§ 10l(a). Far from creating an idea] world where

neither of these two hypothetical individuals is

oppressed (one because he was never persecuted and

the other because he received asylum), it would create

a world where the persecuted individuals remain

persecuted. The Constitution cannot possibly compel

such an outcome.

aw

Such a hypothetical misallocation of an asylum

slot to a fully unqualified applicant is, concededly, a

straw man. Amici do not dispute that many members

of majority faiths in refugee camps qualify for asylum.

Nonetheless, some qualified people face graver

danger than others merely because of who they are or

how they worship. The United States should remain

free to recognize the different levels of danger, and

prioritize the extension of its protection to those it has

determined are most vulnerable. Denying the

Government the opportunity to preferentially protect

those who are the least likely to obtain protection in

their home countries solely because of how they

commune with their Creator would greatly increase

the risk of harm to these individuals. The Court

should not consign them to this unenviable fate.

CONCLUSION

Individuals forced to flee their countries and seek

asylum in an unknown land are some of the most

vulnerable people in the world. Regrettably, the

United States cannot accept every refugee in the

world (nor can any other country). Because there are

significantly more refugees in the world than can be

admitted to the United States, the U.S. Government

must decide which qualified individuals to admit.

Some of the people seeking refuge in this country are

particularly susceptible to, and defenseless in the face

of, persecution and discrimination in their countries

of origin. Members of religious minorities fall into

that group far too often.

—

In determining the validity of the President's

Executive Orders, the Court should be careful to avoid

making it more difficult for the United States to

protect religious minorities, lest it make the world

even more inhospitable to those who are already most

vulnerable.

Respectfully submitted,

August 22, 2017 /s/ Bruce D. Abramson

Bruce D. Abramson

Counsel of Record

Gregory Dolin

UNIVERSITY OF BALTIMORE

SCHOOL OF LAW

1420 N. Charles Street

Baltimore, MD 22101

(410) 837-4610

gdolin@ubalt.edu

Counsel for Amici Curiae