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

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‘Nos. 16-1436 and 16-1540

In The

Supreme Court of the Gnited States

DONALD J. TRUMP, ET AL., PETITIONERS,

INTERNATIONAL REFUGEE ASSISTANCE

PROJECT, ET AL., RESPONDENTS.

, — ee eed

DONALD J. TRUMP, ET AL., PETITIONERS,

Vv.

STATE OF HAWAII, ET AL., RESPONDENTS.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURTS OF APPEALS

FOR,THE FOURTH AND NINTH CIRCUITS

BRIEF OF IMMIGRATION EQUALITY, THE NEW YORK

CITY GAY AND LESBIAN ANTI-VIOLENCE PROJECT, THE

NATIONAL QUEER ASIAN PACIFIC ISLANDER ALLIANCE,

AND THE LGBT BAR ASSOCIATION OF LOS ANGELES AS

AMICI CURIAE IN SUPPORT OF' RESPONDENTS

a ne er ee ce

Eric J. Gorman* Matthew E. Sloan

SKADDEN, ARPS, SLATE, Noelle M. Reed

"MEAGHER & FLOM LLP Allison B!'Holcombe

155 North Wacker Dr. Richard A. Schwartz

Suite 2800 Alyssa J. Clover

Chicago, IL 60606 Sarah Grossnickle

(312) 407-0700 Jonathan Fombonne

eric.gorman@gkadden.com Jennifer H. Berman

Joseph M. Sandman

*Counsel of Record Brittany Ellenberg

(Additional coui.sel SKADDEN, ARPS, SLATE,

listed on inside cover) MEAGHER & FLOM LLP

Attorneys for Amici Curiae

EQUALITY GAY AND QUEER ASIAN

40 Exchange Place LESBLAN:ANT!- PACTFIC ISLANDER

Suite 1300 VIOLENCE ALLIANCE

New York, NY 10005 PROJECT 233 Fifth Ave

(212) 714-2004 116 Nassau Street Suite 4A

amorris@ Floor. 3 New York, NY 10016

immigration New York, NY 10088 (917).489-3158

equality.org (21%) 714-1184 glenn, magpantay@

vaoggin@avp.org mgapia.org

Attorneys for Amici Curiae

Immigration Equality, The New York City

Gay And Lesbian Anti-Violence.Project,

The National Queer Asian Pacific Islander Alliance, and

The LGBT Bar Association of Los Angeles

TABLE OF CONTENTS

STATEMENT OF INTEREST.........00..0.....00.....ceee 1

SUMMARY OF ARGUMENT... 0000. 4

FACTUAL BACKGROUND .....00.o.. ccc cee 6

I. MANY LGBTQ INDIVIDUALS

FACE PERSECUTION AND

HOSTILE SOCIAL

ENVIRONMENTS IN THEIR

COUNTRIES OF ORIGIN,

ESPECIALLY IN THE SIX

COUNTRIES TARGETED IN

THE EO... pasuecslind ioomeninGnel

IEEE ELA ERSE TN ER ier oS Oe vers 20

I. THE UNIQUE HARDSP IPS

IMPOSED ON LGBTQ

POPULATIONS BY THE EO

ARE CONTRARY TO U.S. LAW

AND AGAINST THE PUBLIC

INTEREST... iadinasin hacetsooes a

A. Constitutional And

Federal Law Emphasize

The Importance Of Family

Reunification And

DE EN a 20

B. “Familial Relations”

Should Be Construed

Broadly To Give Equal

Dignity To —

Families... Tee ee

C. Federal Law Reflects The

United States’

Commitment To Accept

LGBTQ Refugees .................. 29

II. THE EO CONTRAVENES U.S.

LAW AND POLICY, WHICH

ACCEPT LGBTQ INDIVIDUALS

AS IMMIG AND

REFUGEES ......................... aivstadeiedie 31

A. The EO Prevents LGBTQ

Individuals From

Accessing The

Mechanisms In Place For

Family Reunification ............ 32

B. The EO Increases LGBTQ

Refugees’ Exposure To

Dangerous Conditions........... 35

Ill. THE EO’S WAIVER

PROVISIONS DO NOT LESSEN

THE IMPACT OF THE EO ON

LGBTQ INDIVIDUALG.................... 38

NE itrtastrtninsiibaicitninmanidinniivnbiciianbancianti 42

ili

E OF AUTHORI S

CASES

Avendano- Hernandez v. Lynch,

800 F.3d 1072 (9th Cir. 2015) .................

Bassett v. Snyder,

59 F. Supp. 3d 837 (E.D. Mich. 2014).....

Board of Directors of Rotary International v.

Rotary Club of Duarte,

Ge See Ie CRIED oredsssscccccerecesessesssceseess

Boutilier v. INS,

Cerrillo-Perez v. INS,

809 F.2d 1419 (9th Cir. 1987) .......0.0.......

Fiallo v. Bell,

I: Ce CT OD ceciicsscecetinenctatpeansinedes

Hawaii v. Trump,

No. 1:17-cv-00050-DKW-KSC (D. Haw.

SERENE RS SAE Shea i ral ei Re

Hawaii v. Trump,

No. 17-15589 (9th Cir. June 12, 2017)....

INS v. Cardoza-Fonseca,

Se: MEE IED cenecindenedasninensennesseceuens

INS v. Errico,

nee, S86 CN i

International Refugee Assistance Project v.

Trump,

No. 17-1351 (4th Cir. May 25, 2017).......

Kadri v. Mukasey,

543 F.3d 16 (1st Cir. 2008)................0....... 1o+ee OO

Kaliski v. District Director of INS,

620 F.2d 214 (9th Cir. 1980) .............0........0... 27

Karouni v. Gonzales,

399 F.3d 1163 (9th Cir. 2005) .............0..00..04.. 30

Khan v. Holder,

584 F.3d 773 (9th Cir. 2009) ..............0...0000... 23

Maldonado v. Att’y General of U.S.,

188 F. App’x 101 (3d Cir. 2006) ..................... 30

Meyer v. Nebros*a,

Se ne I RI occ ccc cedasscomsnnsvossvasacisersacnna 20

Moab v. Gonzales,

500 F.3d 656 (7th Cir. 2007) ........ 0.0.0.0... cece 30

Moore v. City of East Cleveland, Ohio,

ee Re cae canecnhnscasntcdedixanies 27

Murray v. Schooner Charming Betsy,

ee aI vc chic adanctsbascuusnsuccebbindsncscheunssua 23

Obergefell v. Hodges,

576 U.S.__, 185 S. Ct. 2584 (2015)..20, 25, 33

Pitcherskaia v. INS,

118 F.3d 641 (9th Cir. 1997) ................0.000000.. 30

Solis-Espinoza v. Gonzales,

401 F.3d 1090 (9th Cir. 2005) ......0..0........ 22, 32

Troxel v. Granville,

i a cs nupbsioammenntill 26

Trump v. International Refugee Assistance

Project,

582 U.S. , 187 S. Ct. 2080 (2017)...... 39, 40

United States v. Ali,

716 F.34 G29 G.C. Cir. 20138) ......ccccccceveceeseee BB

United States v. Raya- Vaca,

771 F.3d 1196 (Oth Cir. 2014) ........................ 23

Zablocki v. Redhail,

Re UENEEy TO III dindsiieineppcemnneccisensanécneneienteed 20

Zadvydas v. Davis,

ey IEE oi sdcecnipasincnnietanicnedeciniedionns 20

STATUTES

United States Constitution Article VI, cl. 2............. 23

OF ke Oh DIED fintdnicescisenvecovctosassiussnesenducians 30

Oe A I ii eran eareeuenosiaiisiuslnss cophuntnindh 34

Oe Be iin. scsesdicnncotececdboniianeipatecsonenaten 34

es Oe I iced nccnitivatalicisicnnasnetieionnsnmaidste 21

3 5 8B BARES ene en ep eee ae geet 21

Oe Ns Oi a a isaine iid ee sales bincaintinpiennieniscnased’ 21

, ee enna 29

REGULATIONS

Sp ME ITY ascithinied sad saeadcccnaniniemiisindiibeetins uscaseccaotwass 29

OTHER AUTHORITIES

OP UE es es ats By GTS rcisciccsoscncsicssteacevens 29

Aengus Carroll, State-Sponsored Homophobia: A

World Survey of Sexual Orientation Laws,

International Lesbian, Gay, Bisexual, Trans

and Intersex Association (11th ed. 2016),

http://Ailga.org/downloads/02_ILGA_State_

Sponsored_Homophobia_2016_ENG_WEB_

pa a DS Ee She Cah a ae 4, 6, 8, 25

Amnesty International, Making Love a Crime,

Criminalization of Same-Sex Conduct

in Sub-Saharan Africa (June 24, 2013)......... 13

Amnesty International: Torture was my Punishment:

Abductions, Torture and Summary Killings

Under Armed Group Rule in Aleppo and Idleb,

Syria (July 2016),

http://www.amnestyusa.org/sites/default/files/

embargoed_5_july_torture_was_my_

punishment-final_version pdf......................-. 17

Ben Gladstone, For Yemen’s gay community social

media is a savior, The Irish Times (Aug. 22,

2015), http://www. irishtimes.com/news

/world/middle-east/for-yemen-s-gay-

community-social-media-is-a-saviour-

Ri cniiisiniahbenshiitedenigsatsseusitébownionece 18, 19

Canada: Immigration and Refugee Board of Canada,

Libya: Situation of sexual minorities,

including legislation; treatment by society and

authorities; state protection and available

services (2011-July 2014), July 17, 2014,

LBY104913.E, http://www.refworld.org/docid

FR IIE Sac sccedentsccsesccicersccvececscssces 12,13

Catarina Stewart, Young Somali activist sentenced to

death for being a lesbian, The Independent

(Jan. 30, 2016), http://www.independent.co.uk

/news/world/Africa/young-somali-activist-

sentenced-to-death-for-being-a-lesbian-

ii a sndnnntaialinbadonnesens 14

V1i

CBC Radio, ‘Everybody Has Forgotten LGBT

Refugees’: Trump’s Travel Ban Dashes Iranian

Couple’s Hopes (June 30, 2017),

http://www.cbc.ca/radio/asithappens/as-it-

happens-friday-edition-1.4167703/everybody-

has-forgotten-lgbt-refugees-trump-s-travel-

ban-dashes-iranian-couple-s-hopes-

a SENET apt INSEE Nee 10

Collin Stewart, Yemen’s hidden gay community

under siege, Erasing 76 Crimes (Aug. 19, 2015),

https://76crimes.com/2015/08/19/yemens-

hidden-gay-community-under-seige/ ....... 18, 19

European Country of Origin Information Network,

Sudan Penal Code 1991, Chapter 15, Section

148, https://www.ecoi.net/file_upload

/1329_1202725629_sb106-sud-

crimimalact 1991 .pal..............cccccecccoscecceeees 14, 15

Executive Order 13780

I a passim

ie Bes, BOW. RI CIID vncctesessiiscsccecccccsssecccsses ei

a Sy See ERNE IID o, cceccosocsnesentesscdsassdencebes 22

Human Rights Committee, General Comment No. 18,

U.N. Doc. HRI/GEN/1Rev.1 (1994)................ 24

Human Rights First, LGBT Refugees and President

Trump’s Refugee Ban Executive Order, Fact

Sheet: March 2017 (Mar. 7, 2017)

http://www. humanrightsfirst.org/sites/default/

files/hrf-lgbt-refugees-trump-refugee-ban-eo-

eo pidduntets 7,8

Human Rights First, U.S. Leadership Forsaken: Six

Months of the Trump Refugee Bans,

http://www. humanrightsfirst.org/sites/default/

files/HRF-US-Leadership-Forsaken-FINAL.

(SEE ee RCNA Oe: eS See EE a 11. 37

Vill

Human Rights Watch, Lebanon: Syrian Refugee’s

Account of Torture (Dec. 21, 2016),

https://www.hkrew.org/news/2016/12/2 lebanon-

syrian-refugees-account-torture ..................666 7

Human Rights Watch, We Are a Buried Generation

(Dec. 15, 2010), https://www.hrw.org/report

/2010/12/15/we-are-buried-generation/

discrimination-and-violence-against-sexual-

a 2s euaiuasiieesianial 4,8,9, 10

Human Rights Watch, World Report 2017: Events of

2016, https://hrw.org/sites/default/files

/world_report_download/wr2017-web.pdf......17

International Covenant on Civil & Political Rights,

138 Cong. Rec. S4781-01 (daily ed. Apr. 2,

International Labour Organization, Republican

Decree for Law No 12 for the Year 1994

Concerning Crimes and Penalties, Section 11,

Article 264, https://www.ilo.org/dyn/natlex/

docs/ELECTRONIC/83557/92354/

F1549605860/YEM83557.pdf...................0000. 18

International Refugee Rights Initiative, Rights In

Exile Programme, Yemen LGBTT Resources,

http://www.refugeelegalaidinformation.org/

yemen-lgbti-resources ...............ceccceseeeeeees 17, 19

Kate Jastram & Kathleen Newland, Family unity

and refugee protection, Refugee Protection in

International Law: UNHCR’s Global

Consultations on International Protection

(Erika Feller, et al. eds., 2003) ................26, 28

Libya: Penal Code of 1953 as amended by Law 70 of

2 October 1973, Articles 407(4), 408(4) ......... 1]

Mission for Establishment of Human Rights in Iran,

Islamic Penal Code of Iran, http://mehr.org/

Islamic_Penal_Code_of_Iran.pdf. .................... i)

Nina dos Santos, US travel ban leaves LGBT refugees

in limbo, CNN (Mar. 7, 2017),

http://www.cnn.com/2017/03/07/world/trump-

ban-blocks-gay-iranian-refugee/ .................... 11

Richard Fry & Jeffrey S. Passel, In Post-Recession

Era, Young Adults Drive Continuing Rise in

Multi-Generational Living, Pew Research

Center (July 17, 2014),

http://www.pewsocialtrends.org/2014/07/17/in-

post-recession-era-young-adults-drive-

continuing-rise-in-multi-generational-

I eisiaibiicasetinscidienintsphiess tendon bacsinitinlisminnatinasiepenien 26

Saeed Kamali Dehghan, US travel ban leaves

Iranian LGBT refugees in limbo, The

Guardian (Feb. 1, 2017),

https://www.theguardian.com/world/2017/feb/0

1/us-travel-ban-leaves-iranian-lgbt-refugees-

RRR Ea EA ER ay ea LEE, 25

S. Exec. Report 102-23 (102d Cong., 2d Sess.)......... 23

Shahirah Majumdar, Trump’s Travel Ban Could Be a

Death Sentence for Queer Muslim Refugees,

Vice (June 29, 2017), https://www.vice.com/

en_us/article/padyjv/trumps-travel-ban-could-

be-a-death-sentence-for-queer-muslim-

IIS st cctuncctaisteastucapboniceiamenadienunpimaciereebioninien 10

Somalia: Penal Code, Legislative Decree No.5/1962,

SRST eR EAA Nee Re ee) 13

Soon Kyu Choi & Ilan H. Meyer, LGBT’ Aging: A

Review of Research Findings, Needs, and

Policy Implications, Los Angeles: The

Williams Institute (Aug. 2016),

http://williamsinstitute.law.ucla.edu/wp-

content/uploads/LGBT-Aging-A-Review.

aa skecisubealeguuadagusinbinisbtathsdaandiassvexebsnhiitiignoninetexs«uk 27

Swedish International Government Cooperation

Agency, The Rights of LGBTI People in

Somalia (Nov. 2014), http://www.sida.se/

globalassets/sida/eng/partners/human-rights-

based-approach/|gbti/rights-of-lgbt-persons-

ii cnaecrirealsandccnbegrcannvtivedercbedsiove 14

Syria: Penal Code of 1949, Articles 517, 520........... 15

United Kingdom: Foreign and Commonwealth Office,

Human Rights and Democracy: The 2012

Foreign & Commonwealth Office Report -

Libya (Apr. 15, 2013), https://www.gov.uk/

government/uploads/system/uploads/attachme

nt_data/file/408376/Cm_8593_Accessible_

ra iso occa ckscnemenesevenesunenneneie 13

United Nation Human Rights Council, Report of the

Special Rapporteur on the situation of human

rights in the Islamic Republic of Iran, U.N.

Doc. A/HRC/22/56 (Feb. 28, 2013),

http://www.ohchr.org/Documents/Countries/

DRAPER BEIGE onc ccccccccccccesscscescoscescosens 9

United Nation Human Rights Council, Summary

Prepared by the Office of the United Nations

High Commissioner for Human Rights (Feb.

23, 2015), http://www.ecoi.net/file_upload/

19380_1453302677_21503174.pdf. .................. ll

United Nation Human Rights Council, Universal

Periodic Review second cycle, Summary of

stakeholders’ information (Jan. 22, 2016) .....14

United States Citizenship & Immigration Services,

RAIO Directorate — Officer Training, Guidance

for Adjudicating LGBTI Refugee & Asylum

Claims (2011), https://www.uscis.gov/sites

/default/files/USCIS/Humanitarian/Refugees%

20%26%20Asylum/Asylum/Asylum%20Native

%20Documents%20and%20Static%20Files/

RAIO-Training-March-2012.pdf .................... 35

United States Citizenship and Immigration Services,

K-1 Process: Step by step,

https://www.uscis.gov/family/k-1-process-step-

step (last visited Sept. 5, 2017)...............0...... 21

United States Citizenship and Immigration Services,

The U.S. Refugee Admissions Program (2011),

https://www.uscis.gov/sites/default/files/

USCIS/Resources/Resources%20for%20

Congress/Congressional%20Reports/2011%20

National%20Immigration%20%26%20

Consular%20Conference%20Presentations/

Refugee_Admissions_Program.pdf.................. 7

United States Department of Homeland Security,

Office of Public Affairs, Frequently Asked

Questions on Protecting the Nation from

Foreign Terrorist Entry into the United States

(July 21, 2017), https://www.dhs.gov/news

/2017/06/29/frequently-asked-questions-

protecting-nation-foreign-terrorist-entry-

i oaniinsvinccnsvese sthesscnteniaiaatesibaneananl 37, 40

United States Department of Homeland Security,

Office of Public Affairs, Q&A: Protecting the

Nation From Foreign Terrorist Entry to the

United States (Mar. 6, 2017),

https://www.dhs.gov/news/2017/03/06/qa-

protecting-nation-foreign-terrorist-entry-

I eis ocvencvesssctnvinevensarateiaadneeaee 41

xil

United States Department of State, Bureau of

Consular Affairs, Nonimmigrant Visa for a

Fiancé(e) (K1), https://travel.state.gov/content/

visas/en/immigrate/family/fiance-k-1.htm! (last

visited Sept. 5, 2017) .......cccccccccccccseeeeceeeeseoeee. 21

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices —

Tran, http://www.state.gov/j/drl/rls/hrrpt

/humanrightsreport/index.htm?year=2016&

a ES Se 9, 10

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices -

Libya, http://www.state.gov/j/drl/rls/hrrpt

/humanrightsreport/index.htm?year=2016&

eS 12

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices —

Somalia (Mar. 3, 2017), http://www.state.gov/j

/drl/rls/hrrpt/humanrightsreport/index. htm?

year=2016&dlid=265300 .............. cece eeeeeee eee es 13

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices —

Sudan (Feb. 27, 2014), http://www.state.gov/)

/drV/rls/hrrpt/humanrightsreport/index.htm?

year=2016&dlid=265306 ..... 0... cece cceec cence 15

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices —

Sudan (Mar. 3, 2017), http://www.state.gov/}

/drV/rls/hrrpt/humanrightsreport/index. htm?

year=2016&dlid=265306 ..............0--. ccc. ceeeeee 15

xill

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices —

Syria (Mar. 29, 2017), http:/Awww.state.gov

//drV/rls/hrrpt/humanrightsreport/index. htm?

year=2016&dlid=265520 .................:ccceeeee 16, 17

United States Department of State, Bureau of

Democracy, Human Rights and Labor, 2016

Country Reports on Human Rights Practices —

Yemen (2016), http://www.state.gov/j/drl/rls

/hrrpt/humanrightsreport/index.htm?year=

2016 Ge dlid=265528 .............cccccccereerereeeerees 18, 19

United States Department of State, Bureau of

Population, Refugees, & Migration, Summary

of Refugee Admissions as of 31-March-2017,

http://www.wrapsnet.org/s/Refugee-

Admissions-Report-2017_03_31.xls (last

ee le SIE srnceciecicseiictncetspnsciiniptercodees 29

United States Department of State, Important

Announcement (July 14, 2017),

https://travel.state.gov/content/travel/en/news/

important-announcement.html...................... 4]

United States Departments of State, Homeland

Security, & Health & Human Services,

Proposed Refugee Admissions for Fiscal Year

2016 (2015) https://www.state.gov/documents

/organization/247982.pdf......................-22-..00+. 29

STATEMENT OF

This brief sets forth the legal and policy

concerns of Amici Curiae Immigration Equality, The

New York City Gay and Lesbian Anti-Violence

Project, The National Queer Asian Pacific Islander

Alliance, and The LGBT Bar Association of Los

Angeles (collectively, “Amici Curiae”) regarding

Executive Order 13780 (Mar. 6, 2017) (the “EO”).!

Amicus Curiae Immigration Equality is the

nation’s largest legal service provider for LGBTQ?

and HIV-positive immigrants. Each year, the

organization provides legal advice to nearly 3,000

individuals and families, actively manages more

than 650 immigration cases, and appears in federal

circuit courts as counsel or amicus curiae.

The New York City Gay and Lesbian Anti-

Violence Project (“AVP”) is a non-profit organization

founded in 1980 that empowers LGBTQ and HIV-

affected communities and allies to end all forms of

violence through organizing, education, counseling,

direct legal representation, and advocacy. AVP’s

legal services include immigration support for

LGBTQ immigrants. AVP is also the convener for

the National Coalition of Anti-Violence Programs,

i No party to the appeal, nor counsel for any party to the

appeal, authored any part of this brief. No party or party’s

counsel contributed money that was intended to fund preparing

or submitting this brief. The parties have consented to the

filing of this amicus brief.

2 Lesbian, gay, bisexual, transgender and queer

(“LGBTQ”) individuals are sometimes also referred to herein as

LGBT or LGBTI (lesbian, gay, bisexual, transgender, intersex).

which addresses the needs of LGBTQ communities,

including LGBTQ immigration support.

The National Queer Asian Pacific Islander

Alliance (“NQAPIA”) is a federation of LGBTQ Asian

American, South Asian, Southeast Asian, and Pacific

Islander (“API”) organizations. NQAPIA builds the

capacity of local LGBTQ API groups, develops

leadership, promotes visibility, educates’ the

community, invigorates grassroots organizing,

encourages collaboration, and challenges anti-

LGBTQ bias and racism. NQAPIA has spearheaded

an educational and advocacy campaign in support of

immigrants’ rights.

The LGBT Bar Association of Los Angeles is a

bar association of gay, lesbian, bisexual and

transgender lawyers, judges, law students and other

legal professionals. The Association is dedicated to

furthering justice and equality, and _ the

advancement of gay, lesbian, bisexual and

transgender rights throughout California and

beyond.

Amici Curiae are deeply troubled by the

impact that the EO would have on LGBTQ people in

the United States and the six predominantly Muslim

countries from which the EO would drastically

restrict — if not effectively ban — immigration, as

well as the import of the EO on refugees from

around the world. The EO is bad policy made worse

because it assaults established United States legal

principles and constitutionally protected rights.

Amici Curiae respectfully urge the Court to affirm

the Fourth and Ninth Circuits’ decisions in

International Refugee Assistance Project v. Trump,

No. 17-1351 (4th Cir. May 25, 2017) and Hawaii v.

Trump, No. 17-15589 (9th Cir. June 12, 2017), and to

dissolve the stay of those decisions entered by this

Court, thereby avoiding the significant, irreversible

harms that the EO would inflict while the litigation

proceeds below.

OF ARGUME

Individuals who identify as lesbian, gay,

bisexual, transgender and queer live, in many

countries around the world, in persistent, grave

danger. As of October 2016, homosexual conduct

was still outlawed in more than 70 countries

worldwide, 13 of which made _ such _ conduct

punishable by death. Some regimes deny the very

existence of LGBTQ people, making it impossible for

LGBTQ individuals to seek government protection

from the severe persecution and violence to which

they are routinely subjected.‘

Like other immigrants, LGBTQ persons who

already have family or partners living in the United

States are eligible to apply for visas based on this

family status. The process is long and difficult in the

best of circumstances and the difficulty is only

compounded by the EO, not only ‘or would-be

immigrants but also for refugees desperately seeking

freedom from persecution experienced because of

their identities.

3 Aengus Carroll, State-Sponsored Homophobia: A World

Survey of Sexual Orientation Laws, International Lesbian, Gay,

Bisexual, Trans and Intersex Association 36-37 (11th ed. 2016),

http:/Alga.org/downloads/02_ILGA_State_Sponsored_Homopho

bia_2016_ENG_ WEB_150516.pdf (“World Survey’).

4 Human Rights Watch, We Are a Buried Generation (Dec.

15, 2010), https://www.hrw.org/report/2010/12/15/we-are-buried

-generation/discrimination-and-violence-against-sexual-

minorities (“Buried Generation’) (recounting statement of

Iran’s then-President Mahmoud Ahmadinejad in 2007 that “[i}n

Iran we don’t have homosexuals like you do in your country.

This does not exist in our country.”).

The EO, if enforced, would halt visa

processing from Iran, Libya, Somalia, Sudan, Syria,

and Yemen (the “six countries”) for an indefinite

period of time, at the discretion of the Executive

Branch. For LGBTQ individuals, this shutdown is

not simply a bureaucratic inconvenience, but

potentially a matter of life and death. A family-

based visa delayed by the EO is, in effect, a visa

denied. Visa approvals grinding to a halt under the

EO mean LGBTQ individuals must remain in hostile

and unsafe conditions for longer (and perhaps

indefinitely, given the terms of the EO), delaying

reunification with their family members in safe

communities. The danger is heightened because

merely seeking visas from local consular officials,

while citing a same-sex relationship as the basis for

a waiver, reveals applicants’ sexual orientations or

gender identities to local communities and

government officials.

LGBTQ individuals who seek admission into

the United States as refugees based on persecution

in their home countries are similarly en’'‘angered by

the EO. The EO would halt the admission of all

refugees to the United States, again, with the

Administration retaining discretion to continue the

ban indefinitely. Without this crucial path to safety,

refugees are forced to languish in refugee camps that

are often no safer for LGBTQ individuals than their

countries of origin.

As organizations committed to serving and

advocating on behalf of the LGBTQ community in

the United States and abroad, Amici Curiae believe

it is in the public interest to affirm the injunctions

curtailing the EO and to honor the United States’

long-standing commitment to protecting families,

upholding our constitutional values, and serving as a

place of refuge for persecuted and displaced people

from around the world. LGBTQ people will suffer

greatly and irreparably if the EO is enforced.

FACTU KGROU

I, MANY LGBTQ INDIVIDUALS FACE

PERSECUTION AND HOSTILE SOCIAL

ENVIRONMENTS IN THEIR

COUNTRIES OF ORIGIN, ESPECIALLY

IN THE SIX COUNTRIES TARGETED IN

THE EO

While the United States recently has made

strides in advancing LGBTQ rights, including the

right to form an officially-recognized family, the

situation in many countries around the _ globe

remains exceedingly grim. Even in countries where

LGBTQ status is not considered a crime, LGBTQ

individuals are still unable to forge family

relationships due to severely anti-LGBTQ iegai

regimes.§

To escape persecution, LGBTQ individuals

often relocate to the United States to marry, to

reunite with close family members, or to seek refuge.

For those seeking family-based visas, documenting

their LGBTQ status in their countries of origin

leaves them exposed to persecution and violence,

causing many visa-seekers to fear the consequences

of providing documentation of their status for those

visa applications.

5 World Survey, supra n.3, 27.

Similarly, individuals applying through the

United States Refugee Assistance Program

(“‘USRAP”) — a program designed “[t]o offer

resettlement opportunities to persons overseas who

are of special humanitarian concern”® — are severely

disadvantaged by delays. Many refugees are moved

to camps or similar establishments while they await

adjudication of their refugee applications.

While violence and inhumane treatment are

common in refugee camps, LGBTQ refugees face

risks that other refugees do not.’ LGBTQ

individuals often “encounter rejection in refugee

camps and institutionalized homophobia” in their

host countries, even those that are considered to be

“frontline host countries in the global refugee

crisis.”® LGBTQ individuals in refugee camps often

face “marginalization and _ hostility,” and

“transgender people are particularly vulnerable to

violence.” Thus, even after they flee their home

6 U.S. Citizenship and Immigration Services, The U.S.

Refugee Admissions Program 2 (2011), https://www.uscis.gov

/sites/default/files/USCIS/Resources/Resources%20for%20Congr

ess/Congressional%20Reports/2011%20National%20Immigratio

n%20%26%20Consular%20Conference%20Presentations/Refug

ee_Admissions_Program.pdf.

7 Human Rights Watch, Lebanon: Syrian Refugee’s

Account of Torture (Dec. 21, 2016), https://www.hrw.org/news/

2016/12/21/lebanon-syrian-refugees-account-torture.

8 Human Rights First, LGBT Refugees and President

Trump’s Refugee Ban Executive Order, Fact Sheet: March 2017

(Mar. 7, 2017), http://‘www.humanrightsfirst.org/sites/default/

files/hrf-lgbt-refugees-trump-refugee-ban-eo-march-2017.pdf

(“LGBT Refugees Fact Sheet”).

, Id.

countries, many LGBTQ individuals continue to face

“extreme risks and persecution” until they are

permitted to resettle in the United States.!°

The EO, as drafted, would significantly impair,

if not block, many LGBTQ individuals’ chances at

family unification or resettlement as_ refugees,

dramatically increasing the risk of harm to these

applicants abroad. Each of the six countries

targeted by the EO explicitly criminalizes

homosexual conduct, some of them authorizing or

even mandeting the death penalty for such

offenses.!! And in all of these countries, LGBTQ

individuals “face a climate of societal and

institutionalized homophobia,” many suffering

persecution from multiple sources, including

disapproving family members, government and

police forces, and terrorist groups.!2 The treatment

of LGBTQ people in the six countries covered by the

EO — treatment to which the EO would indefinitely

consign LGBTQ family members and refugees — is

detailed below:

Iran. As the U.N. Human Rights Council has

noted and condemned on multiple occasions, LGBTQ

people in Iran consistently “face harassment,

10 Id.

1 World Survey, supra n.3, 36-37.

12 LGBT Refugees Fact Sheet, supra n.8 (“Halting the

refugee admissions program — or the resettlement of refugees

from the targeted Muslim-majority countries — leaves

vulnerable LGBT refugees awaiting resettlement to face

violence, discrimination, and even death.”).

persecution, cruel punishment, and are denied basic

human rights.” ' Iran criminalizes same-sex

relations between consenting adults, and even

mandates the death penalty for the “passive” male

engaged in “sodomy” and for fourth-time “lesbian”

offenders. 14 Authorities conduct many of these

executions in public.'5 Those who are not subject to

the death penalty may nonetheless be punished by

up to 100 lashes for engaging in same-sex

relations.'° Because LGBTQ individuals may face

prosecution under Iranian law if they seek help from

authorities, the law “creates a ‘chilling effect’ on the

ability (and desire) of victims to report abuses

against them, and renders them more vulnerable to

harassment, abuse, blackmail, and extortion by

private actors.”!7

13 U.N. Human Rights Council, Report of the Special

Rapporteur on the Situation of Human Rights in the Islamic

Republic of Iran 20, U.N. Doc. A/HRC/22/56 (Feb. 28, 2013),

http://www.ohchr.org/Documents/Countries/I R/A-H RC-22-

56_en.pdf.

14 Mission for Establishment of Human Rights in Iran,

Islamic Penal Code of Iran, Part 2, Article 111; Part 3, Article

131 5, 7, http://mehr.org/Islamic_Penal_Code_of_Iran.pdf (“Iran

Penal Code”).

16 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices — Iran 3,

http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport

/index.htm?year=2016&dlid=265496.

16 Iran Penal Code, supra n.14, Part 2, Articles 112, 113;

Part 3, Article 129 5-7.

ad Buried Generation, supra n.4.

LGBTQ people in Iran also face pervasive

harassment, abuse, and violence “at the hands of

private actors, including members of their family

and society at large,” as well as “members of I[ran’s

police, security, and intelligence forces in public

spaces.”!8 The Iranian Penal Code does not include

hate crime laws or other criminal justice

mechanisms to aid in the prosecution of bias-

motivated crimes.!® These conditions have caused

numerous LGBTQ Iranians to apply for asylum in

the United States, many citing the threat of

execution and violence due to their sexual

orientation.”°

The EO has already impeded the resettlement

of would-be immigrants and refugees fleeing

persecution in Iran. One Iranian refugee was

accepted for resettlement in the United States after

sd.

19 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices — Iran

43-44, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/

index.htm ?year=2016&dlid=265496.

20 See, e.g., Shahirah Majumdar, 7Trump’s Travel Ban

Could Be a Death Sentence for Queer Muslim Refugees, Vice

(June 29, 2017), https://www.vice.com/en_us/article/padyjv

/trumps-travel-ban-could-be-a-death-sentence-for-queer-

muslim-refugees; CBC Radio, ‘Everybody Has Forgotten LGBT

Refugees’? Trump's Travel Ban Dashes Iranian Couple’s Hopes

(June 30, 2017), http://www.cbc.ca/radio/asithappens/as-it-

happens-friday-edition-1.4167703/everybody-has-forgotten-lgbt-

refugees-trump-s-travel-ban-dashes-iranian-couple-s-hopes-

1.4167706.

receiving a death sentence because of his sexuality.?!

However, his resettlement interview was abruptly

canceled after the first EO took effect, forcing him to

live in fear and subjecting him to multiple assaults

while awaiting further action by the United States.22

Another gay Iranian refugee was scheduled to travel

to the United States until the EO blocked his

plans.23 The EO has thus already exacerbated the

latent threats to LGBTQ lives in Iran, indefinitely

suspending peoples’ prospects for resettlement and

peace.

Libya. Libya’s Penal Code criminalizes

consensual same-sex sexual acts, which are

punishable by up to five years in prison for both

partners.24 “In the Libyan society, to be gay [is]

considered against Islam .”25 Indeed, in 2012, Libya’s

representative to the U.N. proclaimed in a U.N.

21 Nina dos Santos, US travel ban leaves LGBT refugees in

limbo, CNN (Mar. 7, 2017), http://www.cnn.com/2017/03/07

/world/trump-ban-blocks-gay-iranian-refugee.

22 Id.

23 Humen Rights First, U.S. Leadership Forsaken: Six

Months of the Trump Refugee Bans 14, http://www.human

rightsfirst.org/sites/default/files/H RF-US-Leadership-Forsaken-

FINAL. pdf.

24 Libya: Penal Code of 1953, as amended by Law 70 of

October 2, 1973, Articles 407(4), 408(4).

26 U.N. Human Rights Council, Summary Prepared by the

Office of the United Nations High Commissioner for Human

Rights (February 23, 2015), http://www.ecoi.net/file_upload

/1930_1453302677_¢1503174.pdf.

Human Rights Council meeting that “gays threaten

the continuation of the human race.”?6

Reflecting these social mores, official and

societal persecution and violence against LGBTQ

individuals in Libya are widespread, 2? and no

legislation exists to protect LGBTQ individuals

against such mistreatment.”8 In its 2016 report on

human rights in Libya, the State Department noted

several reports of physical violence, harassment, and

blackmail based on sexual orientation and gender

identity. “Militias often policed communities to

enforce compliance with militia commanders’

understanding of ‘Islamic’ behavior, and harassed

and threatened with impunity individuals believed

to have LGBTI orientations and their families.” 2°

For example, in 2013, reports emerged that 12 men,

believed to be homosexual, were detained and

threatened with execution by an armed group

seeking to enforce a strict form of Islamic Sharia

26 Canada: Immigr. and Refugee Bd. of Canada, Libya:

Situation of sexual minorities, including legislation; treatment

by society and authorities; state protection and available

services (2011-July 2014), July 17, 2014, http://www.

refworld.org/docid/54ca12544. html! (“Libya: Situation of Sexual

Minorities”).

27 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices — Libya

28, http://www.state.gov/j/dri/rls/hrrpt/humanrightsreport/

index.htm ?year=2016&dlid=265510 (“Libya’s Human Rights

Practices”).

28 Libya: Situation of Sexual Minorities, supra n.26.

29 Libya’s Human Rights Practices, supra n.27, 28.

law. * Other individuals have reported being

arrested and raped by Libyan police due to their

sexual orientation.*!

Somalia. Homosexual conduct is outlawed in

Somalia. In northern Somalia, where the Somalian

Penal Code governs, homosexual intercourse is

punishable by imprisonment from three months to

three years. °2 In southern Somalia, under the

control of militants, consensual same-sex sexual acts

are punished by flogging or by death.*®

Somali society largely deems _ sexual

orientation and gender identity to be taboo. ™

Thousands of LGBTQ individuals in Somalia keep

their sexual orientation a “closely guarded secret,”

knowing that revealing that information could

attract potential retribution from terrorist groups or

30 United Kingdom: Foreign and Commonwealth Office,

Human Rights and Democracy: The 2012 Foreign &

Commonwealth Office Report - Libya 194 (Apr. 15, 2013),

https://www.gov.uk/government/uploads/system/uploads/

attachment_data/file/408376/Cm_8593_ Accessible _complete.pdf.

31 Libya: Situation of Sexual Minorities, sup, a n.26.

32 Somalia: Penal Code, Legislative Decree No.5/1962,

Article 409.

33 Amnesty Int'l, Making Love a Crime, Criminalization of

Same-Sex Conduct in Sub-Saharan Africa (June 24, 2013).

a4 U.S. Dep't of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices -

Somalia 38 (Mar. 3, 2017), http://www.state.gov/j/dri/rls

/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265 300.

iin

armed gangs.*° As one source described it, “LGBT

people in Somalia are silent and invisible, often

facing violence and rejection from their families and

communities that results in honour killings and

suicides.” 56

Violence against LGBTQ people in Somalia is

rampant. For example, the U.N. Human Rights

Council reported a 2013 incident in which a gay

Somaii 18-year-old teen was blindfolded, buried up

to his waist, and then stoned to death for allegations

of homosexuality.*7 There have been reports of

gangs of armed men searching the streets of Somalia

for people suspected of being LGBTQ.**

Sudan. Sudan’s Penal Code criminalizes

“sodomy,” with punishment ranging from 100 lashes

to life imprisonment and even death.°® Additionally,

35 Catarina Stewart, Young Somali activist sentenced to

death for being a lesbian, The Independent (Jan. 30, 2016),

http://www.independent.co.uk/news/world/Africa/young-somali-

activist-sentenced-to-death-for-being-a-lesbian-a68141216 htm].

36 Swedish Int'l Government Cooperation Agency, The

Rights of LGBTT People in Somalia | (Nov. 2014), http-/Awww.

sida.se/globalassets/sida/eng/partners/human-rights-bascd-

approach/|gbti/rights-of-lgbt-persons-somalia.pdf

(“LGBTI People in Somalia”).

37 U.N. Human Rights Council, Universal Periodic Review

second cycle, Summary of stakeholders’ information 3 (Jan. 22,

2016).

38 LGBTI People in Somalia, supra n.36, 1.

39 Eur. Country of Origin Info. Network, Sudan Penal

Code 1991, Chapter 15, Section 148, https:/Awww.ecoi.net

/file_upload/1329_1202725629_sb106-sud-criminalact 199 1 .pdf.

the Penal Code provides that anyone who engages in

acts considered indecent or an affront to public

morals will be punished by flogging not exceeding 40

times, a fine, or both.”

The criminalization of “sodomy” and “indecent”

acts accompanies pervasive anti-LGBTQ sentiment

in Sudanese society. Many LGBTQ individuals have

expressed concern for their safety. Vigilantes

frequently target suspected gay men and lesbians for

violent abuse, and public demonstrations against

homosexuality are commonplace. 44 The State

Department has documented such abuse, including

by reporting that an individual was detained,

harassed, and beaten by authorities due to his

suspected affiliation with LGBTQ-friendly groups.*2

Syria. The Syrian Penal Code prohibits

“carnal relations against the order of nature,” and

provides for at least three years’ imprisonment for

violations.** Though the law does not specifically

address LGBTQ activity, police have used this

40 Id. Section 151.

41 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices -

Sudan (Feb. 27, 2014), http://www.state.gov/j/drl/rls/hrrpt

/humanrightsreport/index.htm?year=20 16&dlid=265306.

42 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices -

Sudan (Mar. 3, 2017), http://www.state.gov/j/drl/rls/hrrpt

/humanrightsreport/index. htm ?year=20 16&dlid=265306.

43 Syria: Penal Code of 1949, Articles 517, 520.

provision to persecute LGBTQ people.‘* Police also

frequently target LGBTQ individuals by arresting

them without basis on pretexts such as abusing

social values; selling, buying, or consuming illegal

drugs; and organizing and promoting “obscene”

parties.*5

The State Department has recognized “overt

societal discrimination based on sexual orientation

and gender identity in all aspects of [Syrian]

society.”"46 Throughout the past year, Syrian media

reported numerous examples of government and

police forces using accusations of homosexuality as a

pretext to detain, arrest, and torture LGBTQ

people.*’ It is difficult to determine how common

this conduct is because police rarely report the basis

for their arrests. Moreover, because of the social

stigma surrounding LGBTQ identity, many

survivors of such abuse are hesitant to come forward

to report it.48

LGBTQ people in Syria also face extreme

threats of violence at the hands of militant Islamist

groups. For example, last year, one group’s media

44 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices — Syria

(Mar. 29, 2017), http://www.state.gov/j/dri/ris/hrrpt/human

rightsreport/index.htm?year=2016&dlid=265520.

46 Id.

« Id.

ld Id.

office issued a “photo report about the imposition of []

punishment” on those suspected of being gay. The

photographs included images of a boy being pushed

from the top of a building.49 Human Rights Watch

has documented similar violence, including a 15-

year-old boy who was stoned to death after he was

accused of being gay, and three men — one of whom

was just 17 years old — accused of homosexuality

who were “sentenced” to death by shooting. A

witness to the shooting described the horrific scene:

“When I approached the crowd, I saw the body of the

boy shot twice .... A man standing there told me

that he was shot. . . in front of all the people because

he was gay.”5° According to the Syrian Observatory

for Human Rights, at least 25 Syrian men were

murdered in 2016 by extremist groups “on suspicion

of homosexuality or for sodomy.”5!

Yemen. “Yemen is a conservative Arab state

where homosexuality is seen as taboo and is

condemned under the country’s strong Islamic

beliefs.”52 Yemen’s Penal Code outlaws same-sex

* Id.

50 Amnesty Int'l, Jorture was my Punishment: Abductions,

Torture and Summary Killings Under Armed Group Rule in

Aleppo and Idleb, Syria (July 2016), http://www.amnestyusa.

org/sites/default/files/embargoed_5_july-_torture_was_my_

punishment-final_version.pdf.

51 Huwzan Rights Watch, World Report 2017: Events of

2016, https://hrw .org/sites/default/files/world_report_download/

wr2017-web.pdf.

52 Int'l Refugee Rights Initiative, Rights In Exile

Programme, Yemen LGBTI Resources, http://www.refugeelegal

(cont'd)

relations, with punishments ranging from 100 lashes

to death by stoning.5? Yemen’s laws similarly do not

protect against discrimination or hate crimes against

LGBTQ individuals.°4 Quite the opposite. “[T]he

most serious issue connected to the ban on

homosexuality is that victims of hate crimes cannot

seek help from the authorities.”55

Because of the risk of criminal prosecution

and severe punishment, as well as the societal

condemnation they face, most LGBTQ individuals in

Yemen are forced to live in hiding, and few LGBTQ

people are open about their sexual orientation or

gender identity. As a result, “homosexuality in the

(cont’d from previous page)

aidinformation.org/yemen-lgbti-resources (“Yemen LGBTI

Resources’).

53 Intl] Labour Org., Republican Decree for Law No 12 for

the Year 1994 Concerning Crimes and Penalties, Section 11,

Article 264, https://www.ilo.org/dyn/natlex/docs/ELECTRONIC

/83557/92354/F 1549605860/Y EM83557.pdf.

54 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices —

Yemen 44 (2016), http://www.state.gov/j/drl/rla/hrrpt/

humanrightsreport/index htm ?year=20 16&dlid=265528.

55 Ben Gladstone, For Yemen's gay community social

media is a savior, The Irish Times (Aug. 22, 2015),

http://www .irishtimes.com/ne ws/world/middle-east/for-yemen-s-

gay-community-social-media-is-a-saviour-1.2324447 (“Yemen's

Gay Community’).

56 U.S. Dep’t of State, Bureau of Democracy, H.R. and

Lab., 2016 Country Reports on Human Rights Practices -

Yemen 44 (2016), http://www.state.gov/j/drl/ris/hrept/

humanrightsreport/index.htm?year=20 16&dlid=265528.

State is both ‘unseen and unheard’. It is kept

underground, hidden from authorities and a

disapproving society.”57

The plight of LGBTQ people in Yemen has

been exacerbated by the ongoing civil war there.

Although “[t]he situation is very bad for people in

general,” the war “has a particularly severe effect on

sexual minorities.”59 “Even in peacetime, however,

homosexuality in Yemen has_ always been

suppressed. Whatever the outcome of the civil war,

the country’s gay community has a tough battle

ahead before any semblance of widespread

acceptance can be achieved.”

57 Yemen LGBTI Resources, supra n.52.

58 Collin Stewart, Yemen’s hidden gay community under

siege, Erasing 76 Crimes (Aug. 19, 2015), https://76crimes.com

/2015/08/19/yemens-hidden-gay-community-under-seige.

a Id.

60 Yemen's Gay Community, supra n.55.

ARGUMENT

1. THE UNIQUE HARDSHIPS IMPOSED

ON LGBTQ POPULATIONS BY THE EO

ARE CONTRARY TO U.S. LAW AND

AGAINST THE PUBLIC INTEREST

A. Constitutional And Federal Law

Emphasize The Importance Of

Family Reunification And Marriage

The public interest in protecting family units,

both LGBTQ and otherwise, is enshrined in

constitutional law. As this Court has long

recognized, the right to marry is fundamental. See

Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“[T]he

right ‘to marry, establish a home and bring up

children’ is a central part of the liberty protected by

the Due Process Clause.” (citation omitted)). In

Obergefell v. Hodges, 576 U.S. __, 1385 S. Ct. 2584

(2015), the Court made clear that these rights

extend to LGBTQ people. 135 S. Ct. at 2604 (“The

right to marry is a fundamental right inherent in the

liberty of the person, and under the Due Process and

Equal Protection Clauses of the Fourteenth

Amendment couples of the same-sex may not be

deprived of that right and that liberty.”).

The right to marry regardless of sexual

orientation inheres in all persons within the United

States, not just U.S. citizens. See Meyer v. Nebraska,

262 U.S. 390, 399 (1923) (the right “to marry,

establish a home and bring up children” is a central

part of the liberty protected by the Due Process

Clause); Zadvydas v. Davis, 533 U.S. 678, 693 (2001)

(“the Due Process Clause applies to all ‘persons’

within the United States, including aliens, whether

their presence here is lawful, unlawful, temporary,

or permanent”).

The United States’ commitment to enabling

families to live together is also embodied in its visa

policies, which provide special allowances for family-

sponsored visas. See, e.g., 8 U.S.C. § 1153(a)(2)

(allowing legal permanent residents to sponsor

spouses, children, and unmarried sons or daughters);

8 U.S.C. § 1157(c)(2) (providing that spouses and

children may be granted the same status as refugees

whom they are accompanying or following to join); 8

U.S.C. § 1158(b)(3) (providing that spouses and

children may be granted the same status as asylees

whom they are accompanying or following to join).

Members of the LGBTQ community may

normally avail themselves of family reunification

visas to assist family members living abroad,

including those suffering persecution in countries

that discriminate against LGBTQ people. For

example, LGBTQ individuals might apply for

admission on a K-1 “fiancé(e)” visa, which requires

the K-1 visa applicant’s sponsor in the United States

to petition the U.S. Citizenship and Immigration

Services (“USCIS”) to bring the applicant to the

United States to be married.®!

61 See U.S. Dep’t of State, Bureau of Consular Affairs,

Nonimmigrant Visa for a Fiancé(e) (K1), https://travel.

state.gov/content/visas/en/immigrate/family/fiance-k-1.html

(last visited Sept. 5, 2017); U.S. Citizenship and Immigration

Services, K-1 Process: Step by step,

https://www.uscis.gov/family/k-1-process-step-step (last visited

Sept. 5, 2017). Once approved, the applicant must submit

substantial documentation, including proof to substantiate the

(cont'd)

Immigration law must take family unity into

account because “[p]ublic policy supports recognition

and maintenance of a family unit.” Solis-Espinoza v.

Gonzales, 401 F.3d 1090, 1094 (9th Cir. 2005) (“The

Immigration and Nationality Act (INA’) was

intended to keep families together. It should be

construed in favor of family units and the acceptance

of responsibility by family members.”); see also INS uv.

Errico, 385 U.S. 214, 220 (1966) (“The intent of the

Act is plainly to grant exceptions to the rigorous

provisions of the 1952 Act for the purpose of keeping

family units together. Congress felt that, in many

circumstances, it was more important to unite

families and preserve family ties than it was to

enforce strictly the quota limitations or even the

many restrictive sections that are designed to keep

undesirable or harmful aliens out of the country.”).62

(cont'd from previous page)

applicant's relationship with his or her fiancé(e) in the United

States, to a U.S. Consulate or Embassy, participate in an in-

person interview, and submit to a medical examination. Id.

62 Congress recognized in enacting and amending the INA

that the immigration system is designed to preserve family

units. See H.R. Rep. No. 85-1199, at 2 (1957) (the “legislative

history of the [INA] clearly indicates that Congress intended to

provide for a liberal treatment of children and was concerned

with the problem of keeping families of United States citizens

and immigrants united.”); H.R. Rep. No. 1365, 82d Cong., 2d

Sess., 29 (1952) (the INA implements “the underlying intention

of our immigration laws regarding the preservation of the

family unit”); cf. Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977)

(“[T]he legislative history of the provision at issue here

establishes that congressional concern was directed at ‘the

problem of keeping families of United States citizens and

immigrants united.’ To accommodate this goal, Congress has

accorded a special ‘preference status’ to certain aliens who

(cont’d)

Moreover, the value of family unification is an

important limitation on deportation proceedings,

wherein the Government is required to consider

“humanitarian or public interest considerations,”

including the “compelling humanitarian interest in

keeping families united.” United States v. Raya-

Vaca, 771 F.3d 1195, 1207-08 (9th Cir. 2014) (citing

cases); see also Cerrillo-Perez v. INS, 809 F.2d 1419,

1423 (9th Cir. 1987) (noting that “the preservation of

family unity is recognized as a critical factor in

admitting refugees to a country’).

The United States has further recognized that

the public interest includes consideration of LGBTQ

families by its ratification of the International

Covenant on Civil and Political Rights (““ICCPR”) in

1992. 1388 Cong. Rec. S4781-01 (daily ed. Apr. 2,

1992).63 Specifically, in ratifying the ICCPR, the

United States recognized that its domestic law

incorporates the fundamental precept that “the

(cont'd from previous page)

share relationships with citizens or permanent resident

aliens.”).

63 Even if the ICCPR is not a self-executing treaty, the

United States declared that “U.S. law generally complies with

the Covenant{.]” S. Exec. Report 102-23 (102d Cong., 2d Sess.).

Ratified treaties — even without implementing legislation —

remain the supreme law of the land. See U.S. Const. art. VI, cl.

2. Thus, the ICCPR may be a “useful guide” to interpret

domestic law. See Khan v. Holder, 584 F.3d 773, 783 (9th Cir.

2009) (a treaty that does not have force of law nonetheless

serves as a “useful guide” in interpreting other provisions of

law) (citing Murray v. Schooner Charming Betsy, 6 U.S. 64, 118

(1804)); United States v. Ali, 718 F.3d 929, 935 (D.C. Cir. 2013)

(same).

family is the natural and fundamental group unit of

society and is entitled to protection by society and

the State.” ICCPR, art. 23, § 1. That principle

obligates the United States to recognize the right of

a family to live together, and to adopt appropriate

measures “to ensure the unity or reunification of

families, particularly when their members are

separated for political, economic or_ similar

reasons.”&4

Thus, the public has a strong interest in

maintaining personal and familial relationships for

persons within the United States and those seeking

to immigrate to the United States.

B. “Familial Relations” Should Be

Construed Broadly To Give Equal

Dignity To LGBTQ Families

Family reunification and “familial relations”

should cover all families — including embracing

kinship arrangements that, due to discriminatory

legal barriers, cultura! factors, or circumstance, do

not fit the traditional nuclear family model. A

narrow conception of “family” that is limited to

immediate legal or genetic family fails to account for

the lived experiences of many LGBTQ families.

Accordingly, ® narrow construction would cause

concrete harms for those families by excluding from

admission to the United States extended family and

others whose relationships are no less “close” or

“bona fide” than nuclear family members.

64 Human Rights Committee, General Comment No. 18,

para. 6, U.N. Doc. HRI/GEN/1Rev.1, at 26 (1994).

For instance, same-sex marriage and step-

parent or joint adoption of children by same-sex

couples are not permitted in any of the six targeted

countries.®5 As a result, LGBTQ families in these

countries may be made up of permanent partners,

parents, and children who are not legally recognized

as belonging to the same family.°® Moreover, many

LGBTQ people, disowned by immediate family

because of their sexual or gender identity, are raised

by grandparents or other extended family, or form

their own supportive networks with legally

unrelated people.*? Indeed, many LGBTQ people are

forced to flee violence and oppression from their

families of origin because of their sexual or gender

identity. To the extent they have “traditional”

family members in the United States, they may be

unwilling or unable to draw upon those relationships.

The refugee experience itself fosters the

creation of nontraditional families built on mutual

65 See World Survey, supra n.3, 50-54 (surveying countries

that recognize marriage and adoption by same-sex couples).

66 See Obergefell, 135 S. Ct. at 2595 (discussing the legal

patchwork that precluded adopted children of LGBTQ families

from claiming two legal parents).

67 For example, a 27-year-old lesbian left Iran in 2014

after receiving death threats because of her activities as the

editor of an online magazine focusing on LGBTQ issues. She

described the hardships faced by LGBTQ refugees, noting that

“fa]lt least with religious refugees, they have the support of

their families, we don’t even have that. Our families are

[ashamed] of us.” See Saeed Kamali Dehghan, US travel ban

leaves Iranian LGBT refugees in limbo, The Guardian (Feb. 1,

2017), https://www.theguardian.com/world/2017/feb/

01/us-travel-ban-leaves-iranian-lgbt-refugees- in-limbo.

affection and support rather than genetics or

law. Refugee families, “more so than many others,

are likely to be melded from the remnants of

conventional families” as the “trauma of persecution

and flights, the frequency of family separation, and

the exigencies of life in exile create many families of

choice and circumstance.”

In this country, too, economic necessity and

changing cultural factors have made non-nuclear

families increasingly common. As this Court noted

seventeen years ago, “[t]he demographic changes of

the past century make it difficult to speak of an

average American family. The composition of

families varies greatly from household to

household.” Tyroxel v. Granville, 530 U.S. 57, 63

(2000). The number of people living in multi-

generational or skipped-generation families in the

United States has doubled in recent decades. ®

Likewise, many LGBTQ individuals in the United

States rely on “families of choice” or alternative

—_——

68 Kate Jastram & Kathleen Newland, Family unity and

refugee protection, Refugee Protection in International Law:

UNHCR’s Global Consultations on International Protection 583

(Erika Feller, et al. eds., 2003).

69 See Richard Fry & Jeffrey S. Passel, In Post-Recession

Era, Young Adults Drive Continuing Rise in Multi-Generational

Living, Pew Research Center (July 17, 2014), http://www.

pewsocialtrends.org/20 ] 4/07/1 7/in-post-recession-era-young-

adults-drive-continuing-rise-in-multi-generational-living/ (“A

record 57 million Americans . . . lived in multi-generational

family households in 2012, double the number who lived in

such households in 1980.”).

family structures for the support that their biological

families are unable or unwilling to provide.”

This Court has acknowledged that such non-

traditional families are no less worthy of protection.

“Ours is by no means a tradition limited to respect

for the bonds uniting the members of the nuclear

family.” Moore v. City of E. Cleveland, Ohio, 431 U.S.

494, 503 (1977) (association with extended family

members is constitutionally protected); see also Bd.

of Dirs. of Rotary Intl v. Rotary Club of Duarte, 481

U.S. 537, 545-46 (1987) (the Constitution “protects

those relationships, including family relationships,

that presuppose deep attachments and commitments

to the necessarily few other individuals with whom

one shares not only a special community of thoughts,

experiences, and beliefs but also distinctively

personal aspects of one’s life”) (citations omitted). In

the immigration context, the reason for this

flexibility is simple: the “humane purpose of the

[INA] to reunite families would be frustrated’ by an

overly strict interpretation of who is considered a

family member. Kaliski v. Dist. Dir. of INS, 620

F.2d 214, 217 (9th Cir. 1980) (father was not

required to prove his relationship with his child born

out of wedlock under the strict laws of his home

country, noting the “purpose of the Act ... is to

prevent continued separation of families”).

70 See generaily Soon Kyu Choi & Ilan H. Meyer, LGBT

Aging: A Review of Research Findings, Needs, and Policy

Implications, Los Angeles: The Williams Institute (Aug. 2016),

http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT

-Aging-A-Review.pdf.

As the District of Hawaii observed, “context

matters.”’! Recognizing that families do not look the

same everywhere, the UNHCR has advocated, with

respect to family reunification, that “[e]conomic and

emotional ties should be given the same weight in

reunification as relationships based on blood ties or

legally sanctioned unions.” International

humanitarian law supplies a _ context-sensitive

approach, “recogniz[ing] that a family consists of

those who consider themselves and are considered by

each other to be part of the family, and who wish to

live together.”75

LGBTQ persons come to the United States to

achieve formal recognition and protection for their

often unconventional families. “4 broad construction

of “family” serves the p’.blic interest in family

reunification and avoids perpetuating the policies

that prevent LGBTQ people in the six targeted

countries from realizing co-equal status in society.

71 Order, Hawaii v. Trump, No. 1:17-cv-00050-DKW-KSC,

at 12 (D. Haw. July 13, 2017).

72 Jastram & Newland, supra n.68, 586 (citing UNHCR,

Background Note: Family Reunification in the Context of

Resettlement and Integration, Annual Tripartite Consultations

on Resettlement, Geneva 20-21 (June 2001)).

73 Id. at 585-86 (citing Commentary to the Additional

Protocols of the 1949 Geneva Conventions).

c. Federal Law Reflects The United

States’ Commitment To Accept

LGBTQ Refugees

As a matter of both historic practice and

commitment, the United States accepts and resettles

refugees into the United States.74 In fiscal year 2016,

the United States accepted and resettled 84,994

refugees from around the world. America’s

determination to accept and resettle refugees is a

necessary concomitant of its worldwide leadership

in guaranteeing and securing human rights for all.

When the United States ratified the Protocol

on the Status of Refugees in 1968, see 19 U.S.T. 6223,

T.LA.S. No. 6577, and enacted the Refugee Act of

1980, it sought to conform domestic law to

international obligations. Pub. L. No. 96-212, 94

Stat. 102; see also INS v. Cardoza-Fonseca, 480 U.S.

421, 436 (1987) (“[O]ne of Congress’ primary

purposes [in enacting the Refugee Act of 1980] was

to bring United States refugee law into conformance

with the 1967 United Nations Protocol... .”). Those

74 See U.S. Dep’ts of State, Homeland Sec., & Health &

Human Servs., Proposed Refugee Admissions for Fiscal Year

2016 ii (2015) (“On the occasion of World Refugee Day, June 20,

President Obama re-affirmed our nation’s commitment to

helping refugees and our leading role in providing safe haven.”),

https://www.state.gov/documents/organization/247982.pdf; see

also 8 C.F.R. § 207 (the maximum number of refugees who may

be annually admitted to the United States is subject to

modification by the President based on humanitarian concerns).

75 See Dep’t of State, Bureau of Population, Refugees, &

Migration, Summary of Refugee Admissions as of 31-March-

2017, http://www.wrapsnet.org/s/Refugee-Admissions-Report-

2017_03_31.xls (“2016” worksheet) (last visited Sept. 5, 2017).

obligations include accepting LGBTQ refugees who

are fleeing state-sanctioned persecution on account

of their sexual or gender identities.

Establishing the United States’ policy toward

refugees, the Refugee Act expanded the legal

definition of refugees to include those subject to

“persecution on account of . . . membership in a

particular social group.” 8 U.S.C. § 1101(a)(42)(A).

It is now well established that LGBTQ individuals

are deemed to belong to such a “particular social

group” entitled to refugee status because of their

frequent persecution in other countries, as discussed

above. See Kadri v. Mukasey, 543 F.3d 16, 21 (1st

Cir. 2008) (“Sexual orientation can serve as the

foundation for a claim of persecution, as it is the

basis for inclusion in a particular social group.”);

Maldonado v. Att’y Gen. of U.S., 188 F. App’x 101,

104 (3d Cir. 2006) (“homosexuality can be the basis

for an asylum claim based on membership in a

“particular social group”); Moab v. Gonzales, 500

F.3d 656, 662 (7th Cir. 2007) (“The Board of

Immigration Appeals has recognized explicitly that

homosexuality qualifies as a ‘particular social group.”

(citing Jn re Toboso-Alfonso, 20 1. & N. Dec. 819, 822-

23 (B.1.A. 1990))); Karouni v. Gonzales, 399 F.3d

1163, 1172 (9th Cir. 2005) (“[A]ll alien homosexuals

are members of a ‘particular social group” for

asylum purposes). 7° Consequently, the United

16 See also Pitcherskaia v. INS, 118 F.3d 641, 646-47 (9th

Cir. 1997) (remanding denial of an asylum application of a

Russian lesbian who cited fear of conversion therapy); accord

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1082 (9th Cir.

2015) (emanding a denial of relief and noting that “unique

identities and vulnerabilities of transgender individuals must

(cont'd)

States has a well-developed policy in favor of

accepting LGBTQ refugees, regardless of their

country of origin.

Il. THE EO CONTRAVENES U.S. LAW AND

POLICY, WHICH ACCEPT LGBT

INDIVIDUALS AS IMMIGRANTS AND

REFUGEES

Many LGBTQ individuals apply for visas to

permanently relocate to the United States, including

the spouses, parents, children, and fiancés of U.S.

citizens, residents, and asylees. LGBTQ individuals

who cannot obtain family reunification visas may

seek to enter the United States as refugees to avoid

persecution in their countries of origin. The EO

would foreclose both avenues.

The EO shuts down visa processing for 90

days for anyone seeking a visa from Iran, Libya,

Somalia, Sudan, Syria, or Yemen. EO §§ 2(c), 3(a).

After 90 days, the Government may reinstitute the

visa application process, although the EO

contemplates that the President may proclaim that

certain categories of foreign nationals are

permanently prohibited from entry. EO § 2(e). The

EO allows for certain case-by-case exceptions to the

ban on issuing visas, including “to visit or reside

with a close family member” in the case of “undue

hardship.” EO § 3(c). The waiver provisions, as

(contd from previous page)

be considered in evaluating a transgender applicant's asylum,

withholding of removal, or [Convention Against Torture]

claim”).

discussed below, provide no guarantee that LGBTQ

individuals will be able to obtain visas under the EO.

The EO also suspends the USRAP for 120

days and lowers the refugee admissions cap to

50,000 refugees. The EO permits the Executive

Branch to make exceptions to the ban on refugee

admissions and allow refugees on a case-by-case

basis where entry is in “the national interest.”

A. The EO Prevents LGBTQ

Individuals From Accessing The

Mechanisms In Place For Family

Reunification

The public policy goal of family reunification

would be thwarted if the EO were to take effect by

preventing U.S. citizens and _ residents from

sponsoring U.S. visa applications of LGBTQ family

members located in the six countries. The EO would

deprive those U.S.-based family members of the

fundamental right to family reunification, the very

policy the INA was designed to accomplish. See

Solis-Espinoza, 401 F.3d at 1094.

For example, the EO would impair residents

and citizens whose fiancés or partners are located in

the six countries from exercising the fundamental

right to marry, as their partners would be prohibited

from obtaining a K-1 “fiancé(e)” visa to visit the

United States. See EO § 2(c). That harm is

exacerbated for same-sex couples because those

individuals cannot travel to one of the six countries

to get married, as those countries do not recognize

same-sex marriages. By the same token, U.S.

children and family members of same-sex couples,

unable to marry because they are stranded in one of

the six countries, would be uniquely deprived of the

ability to form a legally recognized family, and are

thus forced to bear “the stigma of knowing their

families are somehow lesser” because their families

receive unequal treatment under the EO. See

Obergefell, 135 S. Ct. at 2600.

The EO is an extension of the same context-

blind immigration policies that have disparately

impacted LGBTQ immigrants and their families.”

Although same-sex couples can take advantage of

immigration benefits previously available only to

opposite-sex couples, other avenues for family

reunification remain closed or only available after

surmounting additional hurdles. For instance,

proving a parent-child relationship is significantly

complicated, if not impossible, for a de facto parent

who by the law of her count.y of origin cannot adopt

or gain legal custody of her child, or marry the

77 As this Court and others have recognized, the federal

government until only very recently categorically discriminated

against LGBTQ people in the immigration context by, among

other things, making homosexuality grounds for inadmissibility

and by refusing to recognize same-sex spouses. See, e.g.,

Obergefell, 135 S. Ct. at 2596 (noting that gays and lesbians

have been “excluded under immigration laws”); Boutilier v. INS,

387 U.S. 118 (1967) (determining that the INA’s exclusion of

aliens afflicted with “psychopathic personality” was intended

by Congress to exclude homosexuals from admission); Bassett v.

Snyder, 59 F. Supp. 3d 837, 849 (E.D. Mich. 2014) (“The federal

government categorically discriminated against gays

and lesbians in immigration until 1990, barring all gay and

lesbian noncitizens from entering the United States.... And

the [INA] labeled gay and lesbian people as mentally ill.”

(citations omitted)).

child’s biological parent.’7® And to the extent this

Court recognizes in-laws, such as Respondent Dr.

Elshikh’s mother-in-law, as a “clear” example of

close family, no same-sex couples in the six targeted

countries have in-laws, unless they were married in

a country that recognizes their relationships.”

Moreover, those U.S.-based family members

would be forced to watch and wait as their LGBTQ

loved ones are persecuted in the six countries. The

EO indefinitely delays the ability of LGBTQ foreign

nationals to leave the six countries, even though

many of these individuals would have strong cases to

obtain visas by virtue of their familial relationships

with U.S. citizens or residents. If LGBTQ visa

applicants in the six countries are forced to wait an

indefinite period of time for the visa process to begin

again, they will be waiting in hostile political and

social environments. Each day the EO suspends the

processing of visa applications, meritorious visa

applicants will be exposed to the likelihood of

violence — and the certainty of discrimination — in

the six countries.

By refusing to accept visa applications from

any individual in the six countrics, many LGBTQ

individuals may find themselves forced to seek

in See, ¢.g., 8 US.C. §§ 1101(b)(1), (c)(1) (defining “child”

to include a genetic child, a stepchild by marriage. a child

legitimated by law, or an adopted child in the adoptive parent's

legal custody).

79 These examples illustrate how the EO, even as

modified by the injunctions under review, is too narrow to

protect all close family relationships.

refugee status instead of the visa they otherwise

might lawfully obtain. However, as discussed below,

applying for refugee status presents unique

challenges and perils to LGBTQ individuals, many of

whom reasonably fear that “outing” themselves

could put them or their loved ones in danger.

B. The EO Increases LGBTQ Refugees’

Exposure To Dangerous Conditions

LGBTQ individuals are disparately affected

by draconian immigration requirements because

they are often unable to obtain the records necessary

to demonstrate their abuse in the six countries to

obtain refugee status.®° Likewise, because consular

staff in the six countries may include both U.S.

citizens and foreign nationals, LGBTQ individuals

often have well-founded fears of revealing their

sexual orientation or gender identity in applying for

refugee status. News of an LGBTQ person’s sexual

orientation or gender identity might be spread by

personne] working in consulates in the six countries,

provoking violence and discrimination towards such

individuals.

80 See U.S. Citizenship & Immigr. Servs., RAJO

Directorate Officer Training, Guidance for Adjudicating

LGBTI Refugee & Asylum Claims 38-46 (2011),

https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/

Refugees%20%26%20Asylum/Asylum/Asylum%20Native%20

Documents%20and%20Static%20Files/RAIO-Training-March-

2012.pdf (“reliable information regarding the treatment of

LGBTI individuals may sometimes be difficult to obtain and

that the absence of such information should not lead [an officer]

to presume that LGBTI individuals are not at risk of

mistreatment”).

Suspending USRAP and lowering the annual

refugee resettlement cap thus prolong the already

lengthy and arduous process for LGBTQ individuals

escaping persecution and seeking to reunite with

their families. Indeed, the broad sweep of the EO

disrupts a lifeline for a/l LGBTQ refugees fleeing

persecution on the basis of their sexual or gender

identity. Notwithstanding the already

comprehensive security measures in place,

applicants for admission to the United States will be

forced to wait several more months while the

Administration determines “whether, and if so what,

additional information will be needed” to determine

that individuals seeking admission to the United

States do not pose a security or public-safety threat.

EO § 2(a). The EO does not state how current

procedures are deficient, nor even whether they are

deficient, nor does it provide any assurance that

refugee programs will resume after the 120-day

suspension.

Moreover, the 120-day suspension snowballs

into substantially longer delays as refugees’ security

and medical screenings expire and must be

conducted again and again. These delays impact

HIV-positive refugees in particular, many of whom

are LGBTQ, who must undergo tuberculosis testing

as part of the medical screening process.

During this indefinite delay, LGBTQ people

will continue to be exposed to the ever-present risks

to their safety in resettlement camps and other

manifestly hostile environments. As described above,

the immigration process for LGBTQ people in the six

countries is uniquely fraught with danger, and the

risks they face are aggravated every additional day

that they have to remain in conditions where public

exposure of their sexual orientation or gender

identity could lead to harm and possibly death.

Many LGBTQ refugees outside the six

countries face similar hardships. Human Rights

First reports that LGBTQ refugees fleeing

persecution in Uganda have been stranded in Kenya

as a result of the EO. Subject to harassment and

violence in Kenya because of their sexuality and

lacking access to necessary medical care, these

refugees face grave danger while their refugee

applications are held up by the EO.®!

Even refugees who had been accepted for

resettlement in the United States, but whose travel

was not planned to occur prior to June 29, 2017, are

excluded from admission under the Government’s

implementation of the EO.82 For example, a gay

Iraqi refugee was approved for resettlement to the

United States in January after having been raped

and beaten to the point of hospitalization in his

home country. Even though he currently resides in

Turkey, his resettlement was put on hold as a result

of the EO, forcing him to endure continued

persecution for his sexuality. Similarly, after fleeing

her home country of Iraq, a 20-year-old transgender

61 U.S. Leadership Forsaken, supra n.23, 14-15.

82 See U.S. Dep’t of Homeland Sec., Office of Public Affairs,

Frequently Asked Questions on Protecting the Nation from

Foreign Terrorist Entry into the United States (July 21, 2017)

(“DHS FAQs”), https://www.dhs.gov/news/2017/06/29/

frequently-asked-questions-protecting-nation-foreign-terrorist-

entry-united-states.

refugee continues to receive death threats in her

host country of Lebanon. After completing her U.S.

resettlement interviews, her case was put on hold

and travel plans delayed, placing her, like many

others, in a state of constant vulnerability awaiting

resettlement.

The EO also affects asylum-seekers who are

already present in the United States. An

immigration attorney representing a gay man from

Syria in asylum proceedings described how USCIS

told him that his client’s application was on hold due

to his country of origin and the EO, even though the

client already resides in the United States.

Meanwhile, the same attorney has said that his non-

LGBTQ clients have not faced the same delays.

These wide-ranging and chaotic consequences have

upended the status quo with no logical relation to

the stated goals of the EO. For every day the EO

adds uncertainty and _ disrupts’. established

expectations, the EO increases the dangers to

LGBTQ lives.

Ill. THE EO’S WAIVER PROVISIONS DO

NOT LESSEN THE IMPACT OF THE EO

ON LGBTQ INDIVIDUALS

The EO’s waiver provisions for visa-seekers

and refugees do little to mitigate the harms LGBTQ

individuals would face if the EO were allowed to go

into effect. The EO suggests that waivers of its bar

on travel by nationals of the six countries might be

available “on a case-by-case” basis in cases of “undue

hardship” and where the foreign national’s entry

into the United States “would not pose a threat to

national security and would be in the national

interest.” EO §§ 3(c), 6(c). Whether to grant a

waiver, however, is entirely discretionary and

dependent upon an Administration that has

demonstrated an intent to interpret the EO as

narrowly as possible and on individual consular

officers located in the six countries. Id.

It is difficult to believe that the Government

will issue a significant number of waivers in light of

the Administration’s reaction to the Supreme Court’s

order that the EO may only restrict entry by

individuals “who lack any bona fide relationship

with a person or entity in the United States.”

Trump v. Intl Refugee Assistance Project, 582 U.S.

___, 187 S&S. Ct. 2080, 2087 (2017). Initial guidance

after this order limited “bona fide relationships” to

only a handful of close familial connections and

notably excluded fiancés.** Additional categories of

relationships were only added after public pressure

and additional litigation. °4 Should this Court

ultimately uphold the EO as_ written, the

Administration will likely revert to its original plan

of excluding all individuals from the six countries

and other refugees regardless of their connection to

the United States.

83 See Defendants’ Opposition to Emergency Motion to

Clarify Scope of Preliminary Injunction, Hawaii v. Trump, No.

1:17-cv-00050-DKW-KSC, at 2 (D. Haw. duly 3, 2017)

(admitting that initial guidance did not include fiancés in the

definition of “close familial relationship”).

84 Id. (acknowledging that the Government revised its

definition of close familial relationships to include fiancés after

the Hawaii plaintiffs challenged the Government's exclusion).

Waivers are unlikely to offer real protection.

Neither the EO itself nor the Administration has

provided visa-seekers with meaningful guidance on

the criteria that will be used in considering waiver

applications. The EO vaguely suggests that “[clase-

by-case waivers could be appropriate” in certain

circumstances, including an applicant having

“previously established significant contacts with the

United States,” “significant business or professional

obligations,” or “if the foreign national is . .

someone whose entry is otherwise justified by the

special circumstances of the case.” EO § 3(c). This

vague language is insufficient, and could be easily

abused. Nor does the EO define what conditions are

“in the national interest” or what would constitute

“undue hardship” under section 3(c), creating further

uncertainty as to whether LGBTQ persons would be

able to avail themselves of the waiver provisions.

The Departments of State and Homeland

Security have done little to elaborate on the waiver

requirements. Instead, the Department of

Homeland Security broadly instructs that refugees

can only claim a “close familial relationship” to a

person in the United States to obtain a waiver if the

would-be refugee presents “sufficient documentation

or other verifiable information supporting that

claim.”85 Likewise, the State Department advises

visa applicants that “consular officers may seek

additional information, as warranted, to ensure

underlying relationships are bona fide, rather than

85 DHS FAQs, supra n.82.

being established for the purpose of unlawfully

obtaining a visa, including by evading the E.0."86

However, as discussed above, many LGBTQ

individuals in the six affected countries lack

documentation or other evidence that could

demonstrate their familial relationships due to their

unequal status under the laws of their countries of

origin.8? Thus, in contrast with similarly situated

non-LGBTQ persons whose _ relationships are

officially recognized by the six countries, LGBTQ

persons stand to be disproportionately excluded from

obtaining waivers due to the vagaries of the EO’s

waiver provisions and implementing guidance.

Moreover, even assuming an LGBTQ

individual might qualify for a waiver, LGBTQ

individuals would likely be deterred from applying

for one. To qualify for many of the exceptions, an

LGBTQ person would be required to reveal

information about their sexual orientation or gender

identity to consular officers, and possibly the

consulate’s staff of foreign nationals, posing

additional dangers beyond those typically faced by

—

86 U.S. Dep't of State, Important Announcement (uly 14,

2017), https://travel.state.gov/content/travel/en/news/

important-announcement. html.

87 Neither the EO nor the Administration's guidance

explains whether the waivers would apply to LGBTQ persons

seeking admission to the United States on account of their

romantic or familial relationships. See U.S. Dep't of Homeland

Sec., Office of Public Affairs, Q&A: Protecting the Nation From

Foreign Terrorist Entry to the United States (Mar. 6, 2017),

https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-

foreign-terrorist-entry-united-states.

LGBTQ persons seeking to travel to the United

States. The resulting chilling effect on LGBTQ

persons’ desire to apply for admission to the United

States would only compound their suffering in the

six countries. The waiver provisions therefore do not

diminish any of the special risks and dangers

imposed by the EO on LGBTQ persons from the six

countries seeking either a visa or applying for

refugee admission.

CONCLUSION

For all the reasons stated above, Amici Curiae

respectfully request that the Supreme Court affirm

the orders of the Courts of Appeal for the Fourth and

Ninth Circuits, enjoining the Government from

enforcing the EO.

Respectfully submitted,

Eric J. Gorman

Counsel of Record

Jennifer H. Berman

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

155 N. Wacker Dr.

Suite 2800

Chicago, IL 60606

(312) 407-0700

Matthew E. Sloan

Allison B. Holcombe

Richard A. Schwartz

Alyssa J. Clover

Brittany Ellenberg

SKADDEN, ARPS, SLATE,

September 18, 2017

MEAGHER & FLOM LLP

300 S. Grand Ave.

Suite 3400

Los Angeles, CA 90071

(213) 687-5000

matthew.sloan@skadden.com

Noelle M. Reed

Sarah Grossnickle

Jonathan Fombonne

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1000 Louisiana Street

Suite 6800

Houston, TX 77002

(713) 655-5100

Joseph M. Sandman

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., N.W.

Washington, D.C. 20005

(202) 371-7000

Attorneys for Amici Curiae

Immigration Equality, The

New York.City Gay And

Lesbian Anti-Violence

Project, The National

Queer Asian Pacific

Islander Alliance, and The

LGBT Bar Association of

Los Angeles

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.