Amicus Curiae Brief — Wallace v. Calogero (No. 05-1645)

MOTION FILED “D)

AUG 4 - 2006 o Nos. cee 06-11

Supreme Court of the United States

CAROLINE WALLACE and EMILY MAw,

Petitioners,

v.

PASCAL F. CALOGERO, JR., IN HIS OFFICIAL CAPACITY AS

CHIEF JUSTICE OF THE LOUISIANA SUPREME COURT, ET AL..,

Respondents,

KAREN LECLERC, ET AL.,

Petitioners,

v.

DANIEL E. WEBB, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF FOR NATIONAL ASIAN PACIFIC

AMERICAN BAR ASSOCIATION AND ASIAN

AMERICAN JUSTICE CENTER AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Stanley Young

Counsel of Record

Jaideep Venkatesan

Gina M. Parlovecchio

Bhanu K. Sadasivan

HELLER EHRMAN LLLP

275 Middlefield Road

Menlo Park, California 94025-3506

(650) 324-7000

August 4, 2006 Counsel for Amici Curiae

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE

The National Asian Pacific American Bar Association

(“NAPABA”) and the Asian American Justice Center

(*“AAJC”) hereby respectfully move, pursuant to Supreme

Court Rule 37.3(b). for leave to file the attached brief amici

curiae in support of the petition for writ of certiorari in this

case. NAPABA and AAJC have obtained the consent of the

attorneys for the Petitioners. However, Respondents have

refused to give such consent.

NAPABA is the national association of Asian Pacific

American attornevs, judges, law professors, and law students,

providing a national network for its members and affiliates.

NAPABA advocates for the legal needs and interests of the

Asian Pacific American community and represents the

interests of over 40,000 attorneys and 47 local Asian Pacific

American bar associations, who work variously in solo

practices, large firms, corporations, legal services

organizations, non-profit organizations, law schools, and

government agencies.

AAJC is a_ national, non-profit, non-partisan

organization whose mission 1s to advance the legal and civil

rights of Asian Americans. Collectively, AAJC and _ its

affiliates. the Asian Law Caucus, the Asian Pacific American

Legal Center of Southern California, and the Asian American

Institute have over fifty years of experience in providing legal

public policy, advocacy. and community education on

discrimination issues.

In the instant case, NAPABA and AAJC support the

Petitioners’ petition for writ of certiorari because the

Louisiana regulation at issue disturbingly echoes past state

laws that were used against lawfully admitted non-citizens to

restrict their opportunities for earning a livelihood. The Fifth

Circuit's refusal to apply strict scrutiny to the Louisiana

oe

regulation fails to take into account the history of

discrimination against aliens and their relative lack of

political power, both of which this Court has recognized time

and again as reasons for applying strict scrutiny. NAPABA

and AAJC’s brief amici curiae addresses the history of

discrimination that has justified this Court's application of

Strict scrutiny to alienage classifications in the past, and

explains the present plight of the many nonimmigrant aliens

who are valuable and ongoing participants in American

society, but who are denied the full protection of the

Fourteenth Amendment by the Fifth Cuircuit’s erroneous

decision. Thus, NAPABA and AAJC’s brief amici curiae

will aid this Court’s decision as to whether to grant a writ of

certiorari to Petitioners.

Accordingly, NAPABA and AAJC_ respectfully

request that the Court grant their motion for leave to file the

attached brief amici curiae in support of Petitioners.

Respectfully submitted,

Stanley Young

Counsel of Record

Jaideep Venkatesan

Gina M. Parlovecchio

Bhanu K. Sadasivan

H&ELLER EHRMAN LLP

275 Middlefield Road

Menlo Park, CA 94025-3506

(650) 324-7000

Counsel for Amici Curiae

- iii -

QUESTION PRESENTED

Our nation’s immigrant history shows that states have,

at times, enacted restrictions on the ability of aliens to earn a

livelihood, and such restrictions have been motivated by

antagonism toward those of particular races and national

origins.

Amici will address the following question:

Whether the Fifth Circuit’s application of rational

basis review to Louisiana’s rule precluding nonimmigrant

aliens from practicing law was in error given this Court's

custom of applying strict scrutiny review to similar alienage

classifications due, in part, to this nation’s history of

invidious discrimination against aliens.

=o"

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF AMICI

i re ce ea eta

QUESTION PRESENTED...0......ccscsccscssscesesssesessesesseeeseseeen iii

TABLE OF AUTHORITIES ........cccsscscsssesscsssessssvecseseesseseees V

STATEMENT OF INTEREST OF AMICI CURIAE oe... |

SUMMARY OF THE ARGUMENT .........cccsseccssseecssesseseeees 3

WI oe a es ee 4

I. THE FIFTH CIRCUIT’S ASSERTED

DISTINCTION BETWEEN “IMMIGRANT

ALIENS” AND “NONIMMIGRANT ALIENS”

IGNORES THE REALITY OF OUR SOCIETY .....4

I]. LIVELIHOOD RESTRICTIONS APPLIED TO

ALIENS OR SUB-CLASSES OF ALIENS

HAVE CREATED TERRIBLE INJUSTICES

PE Fe FET kciccisnkcectelanaiisnapianacegaisetieepiecsuoceoteneen 7

HT. THIS COURT'S PRIOR DECISIONS HAVE

PROTECTED ALIENS—-AND SUBCLASSES

OF ALIENS—FROM DISCRIMINATORY

LAWS AFFECTING THEIR LIVELIHOODS ...... 13

IV. THE PERNICIOUS HISTORY OF ALIENAGE

DISCRIMINATION WARRANTS STRICT

SCRUTINY IN THIS CASE TO PRESERVE

FUNDAMENTAL PRINCIPLES OF

PETE IN FEU TE Goons ccesinccotvsccentennedoanvectaivets 15

V. As So asdsinciciardtuisicaiadebacubaaiacrdevum sekeconodkes 16

«Ve

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Bradwell v. State,

BS US. (16 Wall.) 1390 CUGTZY vcvcsscccccccconssavercosenseesees 17

Graham v. Richardson,

NP I PE ORY bitikcicttarticnteniniiinlekaanaae a

Hampton v. Mow Sun Wong,

AA he EO in ux scnscasclavsjncivsevatiaceectanaanvepiiensalea 15

Hurd v. Hodge,

eR iid pitas nctie eentsneieeccenin 14

In re Griffiths,

IF a TS COP isteninnGuvanmaines 14, 16,17

LeClerc v. Webb,

419 F.3d 405 (Sth Cir. 2005), reh'g en banc

denied, 444 F.3d 428 (5th Cir. 2006) ........ eee eeeees 4

Nyquist v. Mauclet,

ee A EE iene piinsiebusiniad Adee maaan: 14

Ovama v. California,

Se Gia OF PED cis iavaskscncbacrreppcdpnse eaten 8, 10, 12,17

San Antonio Indep. Sch. Dist. v. Rodriguez,

WE Bh 5 CE a icdiviecsiaiiseatoasccaseticcrani ati 15

Sugarman v. Dougall,

ED iy ECE ERE ciccchievsccieciaaan 13,14

Takahashi v. Fish and Game Comm'n,

Rs to ceencen canara 13, 14,17

Terrace v. Thompson,

PEP Rta WE CUR hekthisesietiki node dane 10

-Vi-

Toll v. Moreno,

Ee Eh 7 Pent NASR IAT Meenas SILER RE 15

Truax v. Raich,

pa GB At Ss | Rp eee na emcee Sree 13, 16

United States v. Carolene Prods. Co..

i 13

Yick Wo v. Hopkins,

oe MR SACRE Sr ewenneetae ee mreee recs 13

State Cases

In re Bourke,

a es Ae CE, COPIED ieee teracenssoneceyedeeccnnrsinsctnnnss 3

In re Hong Yen Chang,

ee es SI ciiiccentieatacciacinidbunaniniiisdaaneniind 12

In re Yamashita,

PG Ee CE, SUED ei ccctsseiticceetaprintovndareipevisenvitinn 12

Federal Statutes

Act of Dec. 17, 1943, ch. 344, 57 Stat. 600 (1943) ...0 8

Act of July 14, 1870, ch. 254, § 7, 16 Stat. 254

fo: SR ee ee ALL ED NC LENA EE TE 8

Act of July 2, 1946, ch. 534, 60 Stat. 416 (1946)... 8

Act of Mar. 26, 1790, ch. 3, § 1, 2 Stat. 103 (1790)............... 8

McCarran-Walter Act, Pub. L. No. 414, 66 Stat. 163

Lo SERIE CSRS ae Teepe nae Serrano ree SE NII epe eee ee Fm el 9

Nationality Act of 1940, ch. 876, 54 Stat. 1137

(REN CA eee RN Semen RRO &

- Vii -

State Rules & Statutes

Act of Apr. 13, 1850, ch. 97, § 1, 1850 Cal. Stat.

TAA scuchsicanss diame donde aialbiaadooendauiininaabiaemcohiaienan 7

Act of Apr. 30, 1855, ch. 174, § 1, 1855 Cal. Stat.

FU scineseciiehiladbacistel ndaasctacnaalesbsakalentinabdaiicideniinesieiicsin 8

Act of Mar. 30, 1853, ch. 44, § 1, 1853 Cal. Stat. 62 ............. 7

Act of May 13, 1854, ch. 49, § 1, 1854 Cal. Stat. 55 200.0... 8

Act of May 19, 1913, ch. 113, § 1, 1913 Cal. Stat.

SEY ichstsnsscdccipaloccspsaialassilinsainadigiidovsbuadiotatiestiamia dasnligtatamncananiahcakees 9

Act of May 2, 1945, ch. 181, § 2(c), 1945 Cal. Stat.

I sire salnsccaeiissidichchictiicatbmetladiidaneterancbabuiciie Uaddaatcisvaianaes 13

Act of May 4, 1852, ch. 37, § 1, 1852 Cal. Stat. 84 20.00.00... 7

Act of Nov. 2, 1920, § 1, 1920 Cal. Stat. 87... 10

Louisiana Supreme Court Rule XVII § 3(B).......... 3, 6, 13, 16

Miscellaneous

Charles J. McClain, Jr., The Chinese Struggle for

Civil Rights in Nineteenth Century America:

The First Phase, 1850-1870, 72 Cal. L. Rev.

SRT Bn iliictcaincinvdianiantapbaididlinceabesppnunniatennaasaeceeanes 7, 8,9

Dudley O. McGovney, 7he Anti-Japanese

Land Law of California and Ten Other

ee Sr ey es Fe COMES Bec viscdediecercacotebdsboeassncceas 9

Heather Foster, Victim of racism will gain

posthumous bar membership, Seattle Post-

imeliigencer, February 5, 2001 ...............20-.coseosseresere 12

June Kronholz, Under a Cloud: For Dr. Sengupta,

Long-Term Visa ls a Long Wav Off. Wall St.

Bg PE Bog Bee nniidepliuscaduiahinsiilecstaxcksacanieiiieiies 4.5.6

- Vill -

Kelly Jefferys & Nancy Rytina, Office of

Immigration Statistics, U.S. Dep’t of

Homeland Security, Annual Flow Report:

U.S. Legal Permanent Residents, 2005

(Apr. 2006), available at

http://www.uscis.gov/graphics/shared/statisti

cs/index.htm#tlow (last visited Aug. 3,

FTUED snviiness sindlecchasiiaioaialeshananalinisaemuaiaatas wma nina iced 5

Note, 54 Hatv. £.. REV. BOD CID } nccicscccnensvecserssvessncntstsarctants 8

Robert Higgs, Landless by Law: Japanese

Immigrants in California Agriculture to

[94], 38 5. Boon. Hist. 205. (1978) ...ccccescccccrsecvvers 9,10

Ronald Takaki, Strangers from a Different Shore:

A History of Asian Americans (1989) ............2.62- 7,8,9

Thomas Sowell, Ethnic America: A History (1981)........0.00. ?

U.S. Dep't of State, Visa Bulletin,

http://travel.state.gov/visa/frvi/bulletin/bullet

in 2978.html (last visited Aug. 3, 2006) ...........00.00.... 5

—

xe

STATEMENT OF INTEREST OF AMICI CURIAE'

The National Asian Pacific American Bar Association

(“NAPABA”) is a_ national, nonprofit, nonpartisan

organization whose mission, in addition to serving the

professional interests of our members, is to advocate for the

legal needs and civil rights of the Asian Pacific American

community. NAPABA is an association of Asian Pacific

American attorneys, judges, law professors, and law students,

providing a national network for its members and affiliates.

NAPABA represents the interests of over 40.000 attorneys

and 47 local Asian Pacific American bar associations. Since

its inception in 1988, NAPABA has been at the forefront of

national and local activities in the areas of civil rights, and

combating anti-immigrant backlash and hate’ crimes.

NAPABA’s interest in this case arises from the fact .that

historically states have used alienage classifications as a

vehicle to discriminate against individuals of Asian Pacific

descent. Given NAPABA’s role in ensuring equality to Asian

Pacific Americans, and the history of discrimination against

non-citizen Asian Pacific individuals in_ which - states

restricted the rights of aliens to enter professions, own land

and operate businesses, NAPABA has a substantial interest in

discouraging any laws based on alienage classifications that

have the effect of inflicting those same injustices.

' In accordance with Supreme Court Rule 37.3(a),

Amici Curiae have filed with the Clerk of the Court letters

from Petitioners consenting to the filing of this brief. No

person or entity other than Amici Curiae, their members or

their counsel] made a monetary contribution toward the

preparation or submission of the brief, and no counsel for

Petitioners or Respondents had any role in authoring this

brief.

>.

The Asian American Justice Center (“AAJC”) is a

national non-profit, non-partisan organization whose mission

is to advance the legal and civil rights of Asian Americans.

Collectively, AAJC and its affiliates, the Asian Law Caucus,

the Asian Pacific American Legal Center of Southern

California and the Asian American Institute have over fifty

years of experience in providing legal public policy,

advocacy, and community education on discrimination issues.

AAJC is interested in the present case because it implicates

the availability of civil mnghts protections and the full social

and political participation of Asian Americans in this country.

x 2

SUMMARY OF THE ARGUMENT

The Fifth Circuit’s decision not to apply strict scrutiny

to Louisiana’s Rule 3(B) prohibition against certain non-

citizens becoming lawyers contravenes long-standing

precedents designed to protect discrete and_ politically

disadvantaged minorities from unfair treatment. The

regulation at issue here hauntingly echoes past state laws that

prohibited certain subclasses of aliens from pursuing

particular occupations or from owning land, or that imposed

heavier burdens on persons in certain industries, based solely

on their status as aliens. The Fifth Circuit has forgotten that

alienage classifications have been a vessel for irrational

jealousy and hatred. That history has justified this Court's

earlier conclusion that “classifications based on alienage, like

those based on nationality or race, are inherently suspect and

subject to close judicial scrutiny.” Graham v. Richardson,

403 U.S. 365, 372 (1971) (footnotes omitted). This Court

should grant the petitions for writ of certiorari in order to

bring under the shield of the Equal Protection Clause the

many thousands of “nonimmigrant aliens” who, despite that

label and despite the Fifth Circuit’s factual misconceptions,

are full and valuable members of our society.

- Louisiana Supreme Court Rule XVII § 3(B) (“Rule

3(B)") requires that “[e}]very applicant for admission to the

Bar of this state shall * * * [b]Je a citizen of the United States

or a resident alien thereof.” As defined by the Louisiana

Supreme Court, a “resident alien” is an alien who has

“attained permanent resident status in the United States.” /n

re Bourke, 819 So. 2d 1020. 1022 (La. 2002).

ots

ARGUMENT

Il. THE FIFTH CIRCUIT’S ASSERTED

DISTINCTION BETWEEN “IMMIGRANT

ALIENS” AND “NONIMMIGRANT ALIENS”

IGNORES THE REALITY OF OUR SOCIETY

The Fifth Circuit disregarded this Court’s earlier

decisions because of its belief that the status of aliens who do

not hold permanent resident visas (whom the Fifth Circuit

calls “nonimmigrant aliens”) is “far more constricted than that

of resident aliens.” LeClerc v. Webb, 419 F.3d 405, 418 (Sth

Cir. 2005), reh'g en banc denied, 444 F.3d 428 (Sth Cir.

2006). Attempting to rationalize and limit this Court’s earlier

decisions, the Fifth Circuit argues that permanent resident

aliens are “similarly situated to citizens in their economic,

social and civic (as opposed to political) conditions,” and that

holders of F-1 student or HI-B temporary visas are not so

similarly situated. /d. But the Fifth Circuit ignores the reality

that “nonimmigrant aliens,” just like permanent resident

aliens, Occupy an important place in our society and also

deserve the full benefit of the Equal Protection Clause.

The Wall Street Journal recently told the story of

Manajit Sengupta, a meteorologist who has been in the United

States for more than 10 years on F-1 student and H1I-B

temporary visas. See June Kronholz, Under a Cloud: For

Dr. Sengupta, Long-Term Visa ls a Long Way Off. Wall St. J..

June 27, 2006, at Al, Al3. He owns a home in the USS., 1s

raising a six-year-old U.S.-born citizen daughter here, and

believes, “This is my country, as far as I’m concerned now.”

Id. at Al3. While his employer is now seeking to obtain

permanent residency status for him, Dr. Sengupta continues to

wait in his current status as an HI-B visa holder. Sce id. at

Al.

Dr. Sengupta is not the only “nonimmigrant alien”

enduring that wait. Approximately one million aliens a year

=F

become permanent legal residents, with a majority (66% in

2005) living in the United States when they become legal

permanent residents. See Kelly Jefferys & Nancy Rytina,

Office of Immigration Statistics, U.S. Dep't of Homeland

Security, Annual Flow Report: U.S. Legal Permanent

Residents, 2005 (hereinafter “Annual Flow Report’) 1 (Apr.

2006), available at http://www.uscis.gov/graphics/shared/

statistics/index.htm#flow (last visited Aug. 3. 2006). And the

application process to do so is cumbersome:

The Labor Department, which clears one of the

three forms that most skilled immigrants must

file to become permanent residents, has a

backlog of 235,000 cases. The Citizenship and

Immigration Service, which clears the second

form, is 180.000 cases behind.

Kronholz, supra, at Al. According to the current visa

bulletin published by the U.S. Department of State, which ts

the agency that actually issues t.e permanent resident visas,

there is a_ five-year backlog for employer-sponsored

permanent resident visas for skilled workers and

professionals. See U.S. Dep't of State, Visa Bulletin,

http://travel.state. gov/visa/frvi/bulletin/bulletin, 2978. html

(last visited Aug. 3, 2006). The Fifth Circuit's view of ail

“nonimmigrant aliens” as “transients” who can be treated

differently because they have less of an attachment to this

country is seriously flawed, and fails to take into account the

slowness of our immigration bureaucracy.

As the largest group waiting to become legal

permanent residents, Asian “nonimmigrant aliens” suffer

adversely from the chronic backlog in the immigration

process. In 2005, Asia was the leading region of origin of

aliens who became legal permanent residents. See Annual

Flow Report at 3. On a per country -basis, India and China,

st

respectively contributed the second and third largest numbers

of legal permanent residents. See id. at 5.

One of Amici’s counsel and a NAPABA member,

Bhanu Sadasivan, herself illustrates the wrongness of the

Fifth Circuit’s view. Born in India, Dr. Sadasivan has been in

the United States for twelve years on temporary and student

visas. She arrived in the United States in 1991 on an F-1

student visa to study immunology at Yale University. After

completing her Ph.D. in 1997, she became a post-doctoral

follow at Brigham and Women’s Hospital in Boston, which,

along with the Harvard Medical School, helped her obtain an

H-I1B visa. In 2001, she decided to study law and was

admitted to the Boalt Hall School of Law at the University of

California, Berkeley. She then applied for an F-1 student visa

and remained a nonimmigrant student visa holder until 2004.

Dr. Sadasivan currently practices as a patent litigation

attorney in California. Had Louisiana’s Rule 3(B) applied to

her, she likely would never even have considered going to

law school.

The Fifth Circuit's decision, if allowed to stand,

would permit a state to discriminate, based on their alien

status and without strict scrutiny, against thousands of

“nonimmigrant aliens” in situations like Dr. Sengupta’s or Dr.

_Sadasivan’s, who just like “immigrant aliens” are similar to

citizens “in their economic, social and civic conditions.” The

Fifth Circuit's reasoning rings false especially in light of the

contributions of HI-B visa holders, which, according to

Stanford University economist Dan Siciliano, are “necessary

to avoid irreversible damage” to the U.S. economy.

Kronholz, supra, at Al3. According to the National Science

Foundation, the “foreign-born now account for about half of

the Ph.D. engineers, life scientists. physical scientists and

math and computer scientists in the U.S... .. “ Id. The Fifth

Circuit's strained distinction between “immigrant aliens” and

“nonimmigrant aliens” in deciding who should benefit from

a.

the full safeguards of the Equal Protection Clause would

leave many of those people exposed to disparities in treatment

under our laws, based solely on their alica status. Such a

distinction has no warrant in either justice or wisdom, as a

review of our history will disclose.

Hl. LIVELIHOOD RESTRICTIONS APPLIED TO

ALIENS OR SUB-CLASSES OF ALIENS HAVE

CREATED TERRIBLE INJUSTICES IN THE

PAST.

Historically, livelihood restrictions against aliens, in

many cases specifically Asian immigrants, have stemmed

from national origin and/or racial bias. Early Chinese

immigrants to the United States, for example, “were feared as

competitors whose harder work and longer hours for cheap

pay would drive down the standard of living of American

labor.” Thomas Sowell. Ethnic America: A History 136-37

(1981). California adopted several laws that imposed special

taxes on miners who were not citizens. See Charles J.

McClain, Jr., The Chinese Struggle for Civil Rights in

Nineteenth Century America: The First Phase, 1850-1870,

72 Cal. L. Rev. 529, 543-45 (1984). Facially, the laws were

neutral as to race and national origin. See, ¢.g., Act of Apr.

13, 1850, ch. 97, § 1. 1850 Cal. Stat. 221, 221; Act of May 4,

1852, ch. 37, § 1, 1852 Cal. Stat. 84, 84; Act of Mar. 30,

1853, ch. 44, § 1, 1853 Cal. Stat. 62, 62. However, the

historical context indicates that Chinese miners were their

primary targets. McClain, supra, at 536, 539-40. In the

1850s, “24,000 Chinese, two thirds of the Chinese population

in America, were working in California mines.” Ronald

Takaki, Strangers from a Different Shore: A History of Asian

Americans 82 (1989).

California’s laws did not just distinguish aliens from

citizens. Rather, some of them focused on_ particular

categories within the class of aliens. The 1854 version of the

i.

California foreign miners tax law applied only to those aliens

who had not “declared [their] intention[s] to become” U.S.

citizens. Act of May 13, 1854, ch. 49, § 1, 1854 Cal. Stat. 55,

55. The 1855 version provided that “foreigner[s] ineligible to

become . . . citizen[s] of the United States” were required to

pay higher taxes than those foreigners who were eligible for

citizenship. Act of Apr. 30, 1855, ch. 174, § 1, 1855 Cal.

Stat. 216, 216-17. These distinctions between categories of

aliens—between those who had declared their intention to

become citizens and those who had not, and between those

who were eligible to become citizens and those who were not

so eligible—confirmed that the laws were aimed at the

Chinese miners, since it was only the Chinese, being non-

white, who were ineligible for citizenship. McClain, supra, at

543-44: Takaki, supra, at 82.’ The enforcement of these laws

* Congress, for much of our history, used racial

categories to define eligivility for naturalization. First, only

“free white person[s]” were eligible to become naturalized

U.S. citizens. Act of Mar. 26, 1790, ch. 3, § 1, 2 Stat. 103,

103 (1790). Congress then extended eligibility to “aliens of

African nativity and to persons of African descent.” Act of

July 14, 1870, ch. 254, § 7, 16 Stat. 254, 256 (1870). “In

1940, descendants of races indigenous to the Wester

Hemisphere were also made eligible, [Nationality Act of

1940, ch. 876,| 54 Stat. [1137,] 1140 [(1940)]:; in 1943

Chinese were made eligible, [Act of Dec. 17, 1943. ch. 344,]

57 Stat. [600,] 601 [(1943)]; and in 1946 Filipinos and

persons of races indigenous to India were made eligible, [Act

of July 2, 1946, ch. 534,] 60 Stat. 416, [416 (1946)] .....

While it is not altogether clear whether the statute should be

interpreted to include or to exclude certain peoples, see Note.

54 Harv. L. Rev. 860, 864-5 (1941), it seems to be accepted

[as of 1948] that Japanese are among the few groups not

eligible for citizenship.” Ovama v. California, 332 U.S. 633.

635 n.3 (1948). Not until 1952. with the passage of the

(Footnote continued)

ye

by local sheriffs often led to violence against, and the murders

of, Chinese miners. McClain, supra, at 548-53, nn.52, 148.

The atrocities, however, often went without judicial remedy

given the fact that Califormia’s laws also prohibited the

acceptance of testimony by Chinese witnesses in court. /d. at

548-53.

The immigration of Japanese to the United States later

sparked other racial animosities, leading California and other

states to adopt laws prohibiting aliens from owning land.

Takaki, supra, at 203-08. These laws on their face applied to

all aliens regardless of race or national origin, but they were

aimed mainly at immigrant Japanese farmers. See Robert

Higgs, Landless by Law: Japanese Immigrants in California

Agriculture to 1941, 38 J. Econ. Hist. 205, 215 (1978);

Dudley O. McGovney, The Anti-Japanese Land Law of

California and Ten Other States, 35 Cal. L. Rev. 7 (1947)

(collecting state statutes). As California's Attorney General

stated, the goal of such laws was “to limit their presence by

curtailing their privileges which they may enjoy here; for they

will not come in large numbers and long abide with us if they

may not acquire land.” Higgs, supra, at 215.

Under the California Alien Land Law of 1913, only

“aliens eligible to citizenship” (which the Japanese were not.

see supra note 3) could acquire land. Act of May 19, 1913,

ch. 113, § 1, 1913 Cal. Stat. 206, 206. All other aliens could

acquire land only if @ treaty between their country of origin

and the United States s@ germatted. /d. § 2. If no such treaty

existed, they were limited to the right to lease agricultural

land for no more thaw tire years. /d. The state also

McCarran-Walter Act, did Congress abandon general color or

geographic classifications in favor of a quota system based on

national origin. See McCarran-Walter Act, Pub. L. No. 414,

66 Stat. 163 (1952).

= 40

prevented alien-controlled corporations from owning

agricultural lands. /d. § 3. And in the event that a covered

alien would otherwise acquire title to any real estate, the

statute provided that such property would escheat to the state.

Id. §§ 4-6. When Japanese immigrant farmers sought to

evade the restrictions of the 1913 law through purchasing

land in the names of their U.S.-born citizen children,

California enacted the Alien Land Law of 1920, which

forbade leasehold as well as ownership and barred the

immigrants from acting as guardians for minors owning or

leasing land. The 1920 law again called for escheat to the

state of any land found to be held in violation of its

prohibitions. Act of Nov. 2, 1920, § 1, 1920 Cal. Stat. 87, 87.

These California laws were subject to a variety of challenges

in federal and state courts in the 1920s, but were generally

upheld. Higgs, supra, at 219; see, e.g., Terrace v. Thompson,

263 U.S. 197 (1923) (upholding a similar law in the State of

Washington).

In later litigation in this Court, California “disclaimed

any implication that the Alien Land Law 1s racist in its origin,

purpose or effect,” pointing out that “nowhere in the statute is

there a single mention of race, color, creed or place of birth or

allegiances as a determinant of who may not own or hold

farm land.” Ovama v. California, 332 U.S. 633, 650

(Murphy, J., concurring). But, as Justice Murphy pointed out

in a well-researched and detailed opinion concurring in the

Court's decision to invalidate the law as applied to the citizen

son of a Japanese immigrant:

The California Alien Land Law was spawned

of the great anti-Oricntal virus which, at an

earlier date, infected many persons in that

state... . Beginning in 1850, with the arrival

of substantial numbers of Chinese immigrants,

racial prejudices and discriminations began to

mount. Various laws and ordinances were

me i

enacted for the purpose of discouraging the

immigrants and dramatizing the _ native

dissatisfaction. Individual Chinese were

subjected to many acts of violence.

Eventually, Congress responded to this popular

agitation and adopted Chinese exclusion laws.

It was not until 1900 that Japanese began to

arrive in California in large numbers. . . . [T]he

arrival of the Japanese fanned anew the flames

of anti-Orental prejudice. History then began

to repeat itself. White workers resented the

new influx, a resentment which readily lent

itself to political exploitation. Demands were

made that Japanese immigration be limited or

prohibited entirely. Numerous acts of violence

were perpetrated against Japanese businessmen

and workers, combined with private economic

sanctions designed to drive them out of

business. Charges of — espionage,

unassimilativeness, clannishness and

corruption of young children were made

against these “Mongolian invaders."

Campaigns were organized to secure

segregated schools and to preserve "America

for the Americans."

YS se

Many Japanese were engaged in agricultural

pursuits in 1913 and they constituted a

substantial segment of the California farm

labor supply. fF om 1900 to 1910, Japanese-

controlled farms in California had increased

from 4,698 acres to 99,254 acres. The

agricultural situation thus offered a fruitful

target for the anti-Japanese forces, who had

been balked in their attempts to secure a ban

on all Japanese immigration and to outlaw

Japanese acquisition and enjoyment = of

residential and commercial property. In this

new endeavor they were eminently successful.

Ovama, 332 U.S. at 651-55 (Murphy, J., concurring).

Alienage classifications also became the vehicle for

denying Asians the right to practice law in the United States.

Hong Yen Chang, a native of China sought to practice law in

the United States and submitted a certificate of naturalization

issued by a New York court. Noting that federal law did not

allow citizenship for “persons of the Mongolian race,” the

California Supreme Court voided the certificate of

naturalization and denied Hong Yen Chang the right to

practice law. In re Hong Yen Chang, 24 P. 156, 157 (Cal.

1890). Like Hong Yen Chang, Takuji Yamashita, a Japanese

national, also sought to practice law. The Supreme Court of

Washington denied Mr. Yamashita’s application to practice

law on the ground that Mr. Yamashita was ineligible for

citizenship. /n re Yamashita, 70 P. 482 (Wash. 1902). In an

unprecedented move, the Washington Supreme Court recently

reversed its ruling and admitted Mr. Yamashita posthumously

to the Washington state bar. See Heather Foster, Victim of

racism will gain posthumous bar membership, Seattle Post-

Intelligencer, February 5, 2001, at 1. Recognizing the grave

injustice to Mr. Yamashita, Washington Supreme Court's

chief justice, Gerry Alexander, stated, “it's important to

symbolically right this wrong.” /d. As this Court’s past

decisions have shown, application of strict scrutiny in the

present case would avoid similar injustices in the future.

ae

Iii. THIS COURT’S PRIOR DECISIONS HAVE

PROTECTED ALIENS—AND SUBCLASSES OF

ALIENS—FROM DISCRIMINATORY LAWS

AFFECTING THEIR LIVELIHOODS

The Fifth Circuit's decision not to accord suspect class

status to Petitioners and not to exercise strict scrutiny in

judging Loutsiana’s Rule 3(B) ignores the sad history of

alienage distinctions in U.S. law. The Court should grant a

writ of certiorari in this case in order to fulfill its promise of

protecting “discrete and insular munorities’ through

heightened judicial scrutiny. See United States v. Carolene

Prods. Co., 304 U.S. 144, 152 n.4 (1938). From an early

time, this Court has recognized that, “The [F]Jourteenth

[A]mendment to the [C}onstitution is not confined to the

protection of citizens.” Yick Wo v. Hopkins, 118 U.S. 356,

369 (1886). “It is established . . . that an alien is entitled to

the shelter of the Equal Protection Clause. This protection

extends, specifically, in the words of Mr. Justice Hughes, to

aliens who ‘work for a living in the common occupations of

the community.” Sugarman v. Dougall, 413 U.S. 634. 641

(1973) (citations omitted) (quoting Truax v. Raich, 239 US.

33, 41 (1915)).

The Court should follow here the path it earlier laid

out in Takahashi v. Fish and Game Commission, 334 U.S.

410 (1948). There, the Court struck down a 1945 California

law banning the issuance of commercial fishing licenses to

any “person ineligible to citizenship.” Act of May 2, 1945,

ch. 181. § 2(c), 1945 Cal. Stat. 659, 600. This law, like the

1854 and 1855 foreign miner tax and the alien land laws,

distinguished among different categories of aliens, i.e.,

between aliens cligible for citizenship (who could receive

fishing licenses) and aliens not eligible for citizenship (who

could not). Justice Murphy, in his concurring opinion,

observed that the ban was a “direct outgrowth of antagonism

toward persons of Japanese ancestry” and “was intended to

aA.

discourage the return to California of Japanese aliens,” who

had been excluded from the state during World War II.

Takahashi, 334 U.S. at 422-24 (Murphy, J., concurring).

However, the Court’s majority found it “unnecessary tc

resolve th{e] controversy concerning the motives that

prompted enactment of the legislation.” /d. at 418. Rather,

the Court noted that

the Fourteenth Amendment protect[s] “all

persons” against state legislation bearing

unequally upon them either because of

alienage or color. See Hurd v. Hodge, 334

U.S. 24 [1948]. The Fourteenth Amendment

and the laws adopted under its authority thus

embody a general policy that all persons

lawfully in this country shall abide “in any

state” on an equality of legal privileges with all

citizens under non-discriminatory laws.

Id. at 420. Despite the fact that the law prohibited only a

subclass of aliens from receiving fishing licenses, the Court

found the law to be an impermissible discrimination based on

alien status. Referring also to the federal government’s

exclusive power over immigration, the Court rejected

California’s claims that the state could “adopt one or more of

the same classifications [as used by the federal government to

regulate immigration and naturalization] to prevent lawfully

admitted aliens within its borders from earning a living in the

same way that other state inhabitants earn their living.” /d. at

418-19.

Later decisions of this Court applied strict scrutiny to

a variety of alienage classifications that disadvantaged aliens

or subclasses of aliens. Nyquist v. Mauclet, 432 U.S. 1, 7

(1977) (higher education assistance); Sugarman, 413 U.S. at

634 (civil service); /n re Griffiths, 413 U.S. 717, 721 (1973)

(bar membership): Graham, 403 U.S. at 373 (welfare

as.

benefits). In no case did the Court condition its holdings on

the fact that the aliens at issue held permanent resident visas.

Nor in any of those cases did the Court exclude

“nonimmigrant aliens” from the scope of the relief granted.

IV. THE PERNICIOUS HISTORY OF ALIENAGE

DISCRIMINATION WARRANTS STRICT

SCRUTINY IN THIS CASE TO PRESERVE

FUNDAMENTAL PRINCIPLES OF AMERICAN

JUSTICE

This Court has repeatedly recognized that a history of

discrimination against a particular class of people. such as

aliens, makes regulations based on such a classification

appropriate for strict scrutiny analysis. See San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)

(explaining that “traditional indicia of suspectness” include

the fact that a class has been “subjected to . . . a history of

purposeful unequal treatment”). Because of their status as

non-citizens, aliens are less capable of protecting themselves

in the political process, and therefore require greater

protection by the courts. In Hampton v. Mow Sun Wong, 426

U.S. 88, 90 (1976), the Court struck down a federal policy

that barred all non-citizens from employment in_ the

competitive civil service. This Court noted that aliens are a

“class of persons who, entirely apart from the rule

[discriminating against them on the basis of alienage], are

already subject to disadvantages not shared by the remainder

of the community,” such as lacking the right to vote. /d. at

102. As Justice Blackmun noted in To// v. Moreno, 458 U.S.

1, 20 (1982) (Blackmun, J. concurring) (citations omitted).

“both common experience and the unhappy history reflected

in our cases . . . demonstrate that aliens often have been the

victims of irrational discrimination.” Such “disparate

treatment accorded to a class of ‘similarly circumstanced’

persons who historically have been disabled by the prejudice

of the majority” led the Court, in Justice Blackmun’s view,

«46-

“to conclude that alienage classifications ‘in themselves

supply a reason to infer antipathy,” . . . and therefore demand

close judicial scrutiny.” /d. at 20-21 (quotations omitted).

In Griffiths this Court acknowledged that:

It requires no argument to show that the nght

to work for a living in the common

occupations of the community is of the very

essence of the personal freedom and

opportunity that it was the purpose of the

[Fourteenth] Amendment to secure. (Citations

omitted). If this could be refused solely upon

the ground of race or nationality, the

prohibition of the denial to any person of the

equal protection of the laws would be a barren

form of words.

Griffiths, 413 U.S. at 720 (quoting Truax, 239 U.S. at 41).

The Fifth Circuit's decision not to apply strict scrutiny to the

alienage classification at issue here ignores that important

principle.

V. CONCLUSION

We should take this lesson from our nation’s

immigrant history: restrictions on the ability of aliens to earn

a livelihood have been entangled with antagonisms and

jealousies directed toward those of particular races and

national origins. That history warrants the application of

“suspect class” analysis to aliens adversely affected by Rule

3(B). The role of lawyers in the preservation of a just society,

and the importance of fostering legal representation for the

most disadvantaged segments of our national community,

make it even more important that Rule 3(B) undergo strict

scrutiny to ensure its compliance with the Equal Protection

Clause.

a

For the many thousands of “nonimmigrant aliens”

who cherish the freedoms and opportunities that their adopted

country provides, and who seek through their work and

contributions to repay those gifts, such strict scrutiny may be

the only defense against the kind of injustice that scourged

earlier generations of American immigrants. The stories of

today’s immigrants verify this Court’s observation that,

“[f]rom its inception, our Nation welcomed and drew strength

from the immigration of aliens,” and that “admission to the

practice of law 1m the courts of a State ‘in no sense depends

on citizenship of the United States. It has not, as far as we

know, ever been made in any State, or in any case, to depend

on citizenship at all.” Griffiths, 413 U.S. at 719 (quoting

Bradwell v. State, 83 U.S. (16 Wall.) 130, 139 (1872)). By

granting a writ of certiorari to review the Fifth Circuit's

unduly narrow constriction of the Equal Protection Clause’s

scope, this Court would continue to uphold the ideals set forth

in cases such as Griffiths, Ovama and Takahashi—deals that

make our country a model for the rest of the world.

Respectfully submitted,

Stanley Young

Counsel of Record

Jaideep Venkatesan

Gina M. Parlovecchio

Bhanu K. Sadasivan

HELLER EHRMAN LLP

275 Middlefield Road

Menlo Park, CA 94025-3506

(650) 324-7000

Counsel for Amici Curae

August 4, 2006