UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE

ASSISTANCE PROJECT, et al.,

Plaintiffs,

DONALD TRUMP, et al.,

Defendants.

Civil Action No. TDC-17-00361

AMICUS CURIAE BRIEF OF

ANTI-DEFAMATION LEAGUE AND

JEWISH COUNCIL FOR PUBLIC

AFFAIRS

Of counsel:

John B. Harris

Jeremy Goldman

Caren Decter

Jessica Smith

Rayna Lopyan

Lily Landsman-Roos

Lakendra Barajas

FRANKFURT KURNIT KLEIN & SELZ,

P.C. 488 Madison Avenue

New York, NY 10022

COOLEY LLP

David E. Mills (Bar No. 16654)

Alyssa T. Saunders (pro hac vice motion

forthcoming)

Cooley LLP

1299 Pennsylvania Avenue, NW, Suite 700

Washington, DC 20004-2400

Telephone: (202) 842-7800

Counsel for Anti-Defamation League and

Jewish Council for Public Affairs

Steven M. Freeman

Lauren A. Jones

Melissa Garlick

Michael Lieberman

ANTI-DEFAMATION LEAGUE

605 Third Avenue

New York, NY 10158

Doron F. Ezickson

ANTI-DEFAMATION LEAGUE

1100 Connecticut Avenue, Northwest, Suite

1020 Washington, DC 20036

Counsel for Anti-Defamation League

Of counsel:

David Bohm

DANNA MCKINTRICK, P.C.

7701 Forsyth Blvd., Suite 800

St. Louis, MO 63105

Counsel for Jewish Council for Public Affairs

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 1 of 30

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ....................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

ARGUMENT .................................................................................................................................. 4

I. America’s Aspirations as a Refuge for the Oppressed ........................................... 5

II. America is at Its Best When It Honors Its Commitment to Its Core Values .......... 8

III. When America Closed Its Doors and Allowed Its Core Values to be

Compromised, The Country Later Looked Back in Shame .................................. 12

A. The St. Louis and Jewish Refugees During the Holocaust ....................... 13

B. The Chinese Exclusion ............................................................................. 16

C. The Japanese Internment........................................................................... 20

CONCLUSION ............................................................................................................................. 22

APPENDIX ................................................................................................................................... 24

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 2 of 30

TABLE OF AUTHORITIES

Page(s)

Cases

Aziz v. Trump,

No. 117CV116LMBTCB, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ..................................22

Washington v. Trump,

No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ........................................................22

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) .......................................................................................................................4

WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave,

553 F.3d 292 (4th Cir. 2009) .....................................................................................................4

Statutes

50 U.S.C. § 4202. .....................................................................................................................20, 21

Chinese Exclusion Act, Ch. 126, 22 Stat. 58 (1882) (repealed 1943) .........................16, 17, 18, 19

Civil Liberties Act..........................................................................................................................21

Displaced Persons Act of 1948 ........................................................................................................9

Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943) ................................................................18

Immigration and Nationality Act of 1965 (H.R. 2580; Pub.L. 89–236, 79 Stat.

911, enacted June 30, 1968) .....................................................................................................10

Refugee Act of 1980 (Public Law 96-212) ....................................................................................10

Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943) ..................................................18

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STATEMENT OF INTEREST

The Anti-Defamation League (“ADL”) and Jewish Council for Public Affairs (“JCPA”)

respectfully submit this brief as Amici Curiae in support of the relief sought by Plaintiffs

declaring invalid Section 5(d) of the Executive Order dated January 27, 2017, entitled

“Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive

Order”). Accordingly, ADL and JCPA ask this Court to grant Plaintiffs’ motion for a

preliminary injunction enjoining enforcement of Section 5(d) of the Executive Order.

Founded in 1913, ADL is a civil rights and human relations organization that seeks to

stop the defamation of the Jewish people, and to secure justice and fair treatment for all people.

Through its 26 regional offices throughout the United States, ADL provides materials, programs

and services to combat anti-Semitism and all forms of bigotry. Because of its history fighting

discrimination, including prejudice toward immigrants and religious minorities, ADL can

provide unique and important insights for the Court in addressing the Executive Order and in

considering the historical context of the Executive Order’s provisions limiting or barring entry of

refugees into the United States.

JCPA is the coordinating body of 16 national Jewish organizations and 125 local Jewish

federations and community relations councils. Founded in 1944, JCPA is dedicated to

safeguarding the rights of Jews throughout the world; upholding the safety and security of the

State of Israel; and protecting, preserving, and promoting a just, democratic, and pluralistic

society. JCPA recognizes that the United States was founded by individuals who came here in

search of religious and political freedom and economic opportunity, and that our country is based

Amici Curiae states that no counsel for any party authored this brief in whole or in part and

no entity or person, aside from Amici and their counsel, made any monetary contribution toward

the preparation or submission of this brief.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 4 of 30

upon the ethical imperative to “welcome the stranger.” JCPA’s policies make every effort to

institute uniform, compassionate and humane protocols and criteria to process refugee and

asylum claims. JCPA works to ensure that those fleeing persecution are protected, and that the

United States is accessible and welcoming toward those who wish to come here to work and live.

Since 1990, JCPA has supported an open admissions policy that maintains the pluralistic

character of American society and does not prefer one national group at the expense of another.

JCPA opposes the use of rigid caps on entry to the United States. Because of its work in this

field, JCPA also can offer unique and helpful information to this Court related to the harmful

impact of the Executive Order on individuals fleeing persecution.

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BACKGROUND

The United States is a nation dedicated to the ideals of equality, liberty and justice.

(See infra Section I.). Adhering to these principles under changing domestic and international

circumstances often is a work in progress. Throughout the history of the United States, and

frequently with respect to immigration, our ideals have been tested. Sometimes the nation rises

to meet the challenge, upholding the values that make America exceptional. (See infra Section

II.) At other times, when prejudice and fear predominate over reason and compassion, we falter,

often with devastating consequences. (See infra Section III.) We turned our backs on the St.

Louis, a ship with nearly 1,000 Jews fleeing Nazi Germany, condemning hundreds of them to

their deaths; we passed laws that overtly excluded and discriminated against the Chinese; and we

rounded up more than 100,000 Japanese Americans and interned them in prison camps in the

1940s. In each instance, when we later realized that we had strayed from our principles, we were

left to apologize to the people who suffered, or to their descendants, or to the memory of those

who perished without descendants, in each case promising to learn from our mistakes and not to

repeat them.

ADL was created at a time when fear and prejudice against Jews were so great that a

Jewish man, Leo Frank, was convicted of murder after a trial marked by overt anti-Semitism and

then dragged from his prison cell and lynched in 1915.

ADL regularly confronts discrimination

See Wendell Rawls, Jr., After 69 Years of Silence, Lynching Victim is Cleared, N.Y. TIMES,

Mar. 8, 1982. After the lynching, armed mobs ran through the streets of Atlanta, forcing Jewish

businesses to shutter their doors and about half of Georgia’s Jewish population to flee. Sixty

years later, the State of Georgia posthumously pardoned Frank on the grounds that the State

failed to protect him while he was in its custody. See STATE BOARD OF PARDONS AND PAROLES,

Pardon of Leo Frank (Mar. 11, 1986), http://www.gpb.org/files/georgiastories/nsouthfrank176.jpg.

See also Leonard Dinnerstein, Leo Frank Case, NEW GEORGIA ENCYCLOPEDIA,

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against perceived outsiders, foreigners and strangers. As an organization founded by

immigrants, as an organization sworn to protect the interests of religious and ethnic minorities,

ADL believes that when our nation’s values are threatened, we are duty-bound to look back at

the founding principles that propelled this nation of immigrants – in the hope that future

generations can celebrate and maintain our resolve. Furthermore, JCPA believes that in

accordance with our core American principles of equality, fairness and due process of law, those

entering the country legally with the intention to settle here permanently should not be subject to

a delayed process as a result of any administrative procedures or legislative changes.

ARGUMENT

As the U.S. Supreme Court has held, a petitioner seeking a preliminary injunction must

demonstrate that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm

in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

(2008).

With this brief, ADL and JCPA seek to provide important insight regarding how

Section 5(d) of the Executive Order, absent injunctive relief, will almost certainly cause

irreparable harm, similar to other harms for which the United States has later apologized when it

failed to live up to its values and the promise embodied in the Constitution. ADL and JCPA also

http://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case (last visited Feb.

7 2017).

See also WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298

(4th Cir. 2009) (“In order to receive a preliminary injunction, a plaintiff must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

public interest.”) (internal quotation omitted).

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seek to demonstrate that the public interest lies squarely in support of injunctive relief, as

America has always been at its best when it opens its doors to refugees and immigrants.

I. America’s Aspirations as a Refuge for the Oppressed

The promise of America has been manifest since before the American Revolution. John

Winthrop, while still on his transatlantic voyage to the New World, admonished the future

colonists of Massachusetts always to remember that their new community would be “as a city

upon a hill,” with the entire world watching.

In fulfilling this vision, the country welcomed in

its early years those disfavored and persecuted in their homelands based on their religious

beliefs, including the Pilgrims, the Puritans and the Huguenots. Since then, our nation’s wisest

leaders have been guided by Winthrop’s inspiring vision and have strived toward a more

inclusive democracy.

The birth of the United States came in part because the Founders sought to cast off the

shackles of Europe’s endless religious wars and sectarian conflict in order to form a more perfect

union. In beseeching the country to separate from England, Thomas Paine recognized that

Europe was “too thickly planted with kingdoms to be long at peace” and believed the discovery

of America had a divine purpose: “to open a sanctuary to the persecuted in future years, when

home should afford neither friendship nor safety.”

Seven months later, the Declaration of

Independence enunciated the “self-evident truths” that “all men are created equal, that they are

endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and

the pursuit of Happiness.” Less quoted from the Declaration is the Founders’ burning grievance

that the English King had restricted free immigration, having “endeavoured to prevent the

John Winthrop, A Model of Christian Charity (1630).

Thomas Paine, Common Sense (Jan. 10, 1776).

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population of these States; for that reason obstructing the Laws for the Naturalization of

Foreigners [and] refusing to pass others to encourage their migrations hither.”

After the United States won its independence, it faced the challenge of designing laws

that embodied the enlightened vision of the new nation. In 1785, James Madison published

“Memorial and Remonstrance Against Religious Assessments” in opposition to a bill proposed

to Virginia’s General Assembly that would have levied a modest tax to support Christian

education.

Madison warned that any measure, no matter how slight, that gave a preference to

one religion over another would constitute “a dangerous abuse of power” and would betray the

vision of America as a shining city upon a hill:

Because the proposed establishment is a departure from that generous policy,

which, offering an Asylum to the persecuted and oppressed of every Nation and

Religion, promised a lustre to our country, and an accession to the number of its

citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of

holding forth an Asylum to the persecuted, it is itself a signal of persecution. . . .

Distant as it may be in its present form from the Inquisition, it differs from it only

in degree. The one is the first step, the other the last in the career of intolerance.

The magnanimous sufferer under this cruel scourge in foreign Regions, must view

the Bill as a Beacon on our Coast, warning him to seek some other haven, where

liberty and philanthrophy (sic) in their due extent, may offer a more certain repose

from his Troubles.

Virginia recognized Madison’s wisdom. It rejected the establishment bill and instead

adopted Thomas Jefferson’s “Statute for Religious Freedom,” which firmly separated church

from state and enshrined the principles of religious liberty for all.

When Madison went to the

Declaration of Independence (July 4, 1776).

James Madison, Memorial and Remonstrance against Religious Assessments ¶ 9 (Jun. 20,

1785).

Id. (emphasis added).

Virginia’s Statute for Religious Freedom (Jan. 16, 1786)

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 9 of 30

Constitutional Convention in 1787, he fought for Jefferson’s view to become the law of the land,

and it became a bedrock of the rights confirmed by the First Amendment.

Although the makeup of the United States was overwhelmingly Christian at its birth, our

Founders were clear that the nation’s new laws prohibiting religious discrimination extended to

people of all faiths and backgrounds. When Jefferson later reflected on his Statute for Religious

Freedom, he extolled the broad application of the law, which was evidence that the legislators

“meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian

and the Mahometan [Muslim], the Hindoo [Hindu], and every Infidel of every denomination.”

The American values of accepting people into this country regardless of their faith, race

or nationality have been celebrated by our leaders. In 1855, Abraham Lincoln confronted the

burgeoning anti-immigrant “Know Nothing” movement, soundly rejecting the Know Nothings’

vision of an America in which “all men are created equal, except negroes, and foreigners, and

Catholics.”

He said of the movement: “When it comes to this I should prefer emigrating to

some country where they make no pretence of loving liberty — to Russia, for instance, where

despotism can be taken pure. . . .”

The vision of the “shining city on the hill” has also inspired poets. In 1856, Walt

Whitman wrote: “These States are the amplest poem, here is not merely a nation but a teeming

Nation of nations.”

Emma Lazarus’ immortal sonnet, enshrined on the pedestal of the Statue

of Liberty, urges “ancient hands” to give America “your tired, your poor, your huddled masses

Thomas Jefferson, Autobiography, Works 1:71 (1821).

Abraham Lincoln, Letter to Joshua F. Speed (Aug. 24, 1855).

Id.

Walt Whitman, Preface to Leaves of Grass (1855).

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yearning to breathe free. . . . Send these, the homeless, tempest-tost to me, I lift my lamp beside

the golden door!”

These values have endured to the modern day. In his 1959 book, A Nation of

Immigrants, future President John F. Kennedy studied the history of immigration in this country,

both in terms of those subject to religious persecution and those facing other overpowering

hardship. He wrote: “America has always been a refuge from tyranny. As a nation conceived in

liberty, it has held out to the world the promise of respect for the rights of man.”

On the eve of his election as President in 1980, Ronald Reagan also took inspiration from

Winthrop’s vision of America:

These visitors to that city on the Potomac do not come as white or black, red or

yellow; they are not Jews or Christians; conservatives or liberals; or Democrats or

Republicans. They are Americans awed by what has gone before, proud of what

for them is still . . . a shining city on a hill.

II. America is at Its Best When It Honors Its Commitment to Its Core Values

There are numerous examples where the United States has met its aspirations as

Winthrop’s “shining city on the hill,” opening itself to “anyone with the will and the heart to get

here.”

At its best, the United States has been a beacon of hope for refugees from war-torn

countries, victims of religious persecution, natural disasters or other emergencies, fulfilling what

President Kennedy described in A Nation of Immigrants as the “natural humanitarian impulses of

the American people which is in keeping with our traditions of shelter to the homeless and refuge

Emma Lazarus, The New Colossus (1883).

John F. Kennedy, A Nation of Immigrants 7 (Harper Perennial, January 2008).

Ronald Reagan, Election Eve Address, (Nov. 3, 1980).

Ronald Reagan, Farewell Address to the Nation, (Jan. 11, 1989).

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for the oppressed.”

Indeed, many of these refugees have contributed immeasurably to the

fabric of America.

With the Truman Directive in 1945, and the Displaced Persons Act of 1948, the United

States – for the first time since its founding – began explicitly to focus on its identity as a

sanctuary for those fleeing persecution, as the first Americans had done hundreds of years

earlier.

President Truman led the assistance and reconstruction effort to resettle hundreds of

thousands of European Jews and other Europeans displaced from their home countries who could

not return in the aftermath of World War II.

These new laws gave truth to Thomas Paine’s prophecy that the United States would

“open a sanctuary to the persecuted in future years, when home should afford neither friendship

nor safety.” The refugees welcomed to the United States during or after World War II have

made immeasurable contributions to politics, science, literature, music, art, and social and

scientific studies. Refugees from that period include Madeleine Albright, Hannah Arendt, Bela

Bartok, Marc Chagall, Marlene Dietrich, Albert Einstein, Enrico Fermi, Henry Kissinger,

Raphael Lemkin, Thomas Mann, Vladimir Nabokov, Claude Levi-Strauss, Dr. Ruth Westheimer,

and Billy Wilder. American culture and science stand on the shoulders of many of these

contributions.

Kennedy, supra note 15 at 46.

David W. Haines, “Learning From our Past: The Refugee Experience in the United States,”

AMERICAN IMMIGRATION COUNCIL,

http://www.americanimmigrationcouncil.org/research/refugee-experience-united-states (last

visited Feb. 7, 2017).

Id. In so doing, as set forth below, the United States began the process of making amends for

the tragic consequences of its turning away Jewish refugees during World War II, dooming many

of them to death or excruciating years in concentration camps.

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With the onset of the Cold War, Congress began assisting groups of refugees from

Communist regimes including those seeking freedom from the Soviet Union, Cuba, Hungary,

Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam War. The

openness to asylum seekers reflected in these efforts also demonstrated a growing recognition

that many refugees have significant education, skills, strong family structures and commitment to

hard work and success that make them ideal new citizens.

Examples of notable refugees that

came to the United States from this period include: Sergey Brin, Joseph Brodsky, Gloria Estefan,

Milos Forman, Wyclef Jean, Miriam Makeba, Thomas Peterffy, Regina Spektor and David Tran.

In the wake of the publication of A Nation of Immigrants, Congress enacted the

Immigration and Nationality Act of 1965, which allowed increased numbers of people to migrate

to the United States from South America, Asia, Africa, the Middle East, and Southern and

Eastern Europe, abolishing the previous quotas that had been set based on national origin. In

1968, the United States was one of the first countries to sign the United Nations Protocol

Relating to the Status of Refugees, a key treaty in international refugee law. The 1974 Jackson-

Vanik Amendment ultimately permitted approximately 500,000 Jews, evangelical Christians and

Catholics to escape religious persecution in the former Soviet Union by coming to the United

States. And in 1980 Congress signed the Refugee Act which standardized the resettlement

process and services for all refugees admitted to the United States.

Since the 1980s, the United States has resettled refugees from Darfur fleeing genocide

and violence; refugees from Bhutan forced out of their country; and Syrian, Iraqi and Afghan

refugees displaced by war. In addition, the U.S. has facilitated the naturalization of Hmong

Haines, supra note 19.

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veteran refugees who served in Laos in support of U.S. forces and during the Vietnam War;

assisted the children of Vietnamese re-education camp survivors through the “McCain

Amendment;” assisted former Soviet and Indochinese nationals with a credible fear of

persecution through the “Lautenberg Amendment;” and assisted Iranian religious minorities

through the “Specter Amendment.”

Since 1975, the US has settled over 3 million refugees.

It should come as no surprise, then, that more than 40 percent of Fortune 500 companies

were founded by recent immigrants or their children (even though such immigrants account for

roughly 10.5 percent of the U.S. population); or that the revenue generated by these companies is

greater than the GDP of every country in the world outside the U.S. except China and Japan; or

that successful global companies founded by American immigrants and refugees or their children

span all sectors of the economy, including some of the most valuable brands in the world (Apple,

Google, eBay, AT&T, General Electric, IBM, McDonald’s).

At least 18 percent of all

scientists living in the U.S., of which there are millions, are immigrants or refugees,

and over

William J. Clinton, “Statement on Signing the Hmong Veterans Naturalization Act of 2000”

(May 26, 2000).

Andorra Bruno, CONG. RESEARCH SERV., RL31269, “Refugee Admissions and Resettlement

Policy” (Nov. 30, 2016).

Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,” PEW

RESEARCH CENTER, (Feb. 3, 2017), http://www.pewresearch.org/fact-tank/2017/02/03/where-

refugees-to-the-u-s-come-from/.

PARTNERSHIP FOR THE NEW AMERICAN ECONOMY, “The ‘New American’ Fortune 500,”

(June 2011), http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-american-

fortune-500-june-2011.pdf.

Flora Lan, Katherine Hale, and Emilda Rivers, “Immigrants’ Growing Presence in the U.S.

Science and Engineering Workforce: Education and Employment Characteristics in 2013,”

NATIONAL CENTER FOR SCIENCE AND ENGINEERING STATISTICS (Sept. 2015),

https://www.nsf.gov/statistics/2015/nsf15328/nsf15328.pdf.

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25% of all physicians and surgeons in the United States are born abroad.

And as of 2016,

roughly 2 million veterans of the U.S. Armed Forces living in the U.S. — of a total 18.8 million

— are refugees/immigrants or have refugee/immigrant parents.

As President Kennedy

observed, “[t]here is no part of our nation that has not been touched by our immigrant

background.”

The Executive Order betrays that history, and would exclude the talents, ideas

and work ethic of immigrants and refugees who, just as with generations past, would help to

build and protect our nation and strengthen our economy.

III. When America Closed Its Doors and Allowed Its Core Values to be Compromised,

The Country Later Looked Back in Shame

In sharp contrast to the times when the United States has shown its “natural humanitarian

impulses,” at other times the country has closed itself off and succumbed to fear or bigotry, with

tragic consequences. Sometimes the victims of this xenophobia and prejudice were Jews (the St.

Louis tragedy and the denial of visas) or other religious minorities, sometimes they were from

nations that were regarded as undesirable (the Chinese exclusion) and sometimes they were

groups the government assumed to be disloyal (the Japanese internment during World War II).

In each case, the United States apologized years later, after it was too late.

Nicole Fisher, “25% of Physicians Are Born Outside the U.S. Can Immigration Reform Fix

The Shortage?” FORBES: PHARMA & HEALTHCARE (Jul. 12, 2016),

http://www.forbes.com/sites/nicolefisher/2016/07/12/25-of-docs-are-born-outside-of-the-u-s-

can-immigration-reform-solve-our-doc-shortage/#446de1bc702b.

Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” MIGRATION

POLICY INSTITUTE (Oct. 13, 2016), http://www.migrationpolicy.org/article/immigrant-veterans-

united-states.

Kennedy, supra note 15, at 3.

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A. The St. Louis and Jewish Refugees During the Holocaust

The tragedy of the vessel St. Louis illustrates the devastating consequences that can result

when the United States turns its back on refugees in need. In May 1939, on the eve of World

War II and after Kristallnacht,

the St. Louis left Hamburg, Germany, carrying 937 passengers,

nearly all of whom were Jews fleeing Nazi persecution. The ship was headed to Havana, Cuba

with the hope of having its passengers granted sanctuary in the United States.

Prior to the ship’s departure, most of the Jewish passengers had obtained valid paperwork

permitting their entry to Cuba and had also applied for U.S. visas, planning to stay in Cuba only

until their entry to the U.S. was approved. By the time the St. Louis arrived in Cuba on May 27,

1939, however, the Cuban president had invalidated most of the passengers’ travel certificates.

While United States-based Jewish organizations negotiated with Cuban officials to persuade

them to admit the other passengers, the United States refused to formally intercede on the

refugees’ behalf or publicly pressure the Cuban government to admit them.

After negotiations with Cuba failed, the St. Louis headed towards Miami in June 1939,

coming within sight of the Florida coastline. Despite pleas from passengers on board, President

Roosevelt and the State Department refused to accept the Jewish refugees into the United

Kristallnacht, or the “Night of Broken Glass,” occurred in November 1938, when almost 100

Jews were murdered, countless more were attacked, and as many as 30,000 Jewish men were

arrested and sent to concentration camps. See THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES

HOLOCAUST MEMORIAL MUSEUM, “Kristallnacht,” https://www.ushmm.org/wlc/en/

article.php?ModuleId=10005201. (Last visited Feb. 7, 2017).

THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM,

“Voyage of the St. Louis,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267.

(Last visited Feb. 7, 2017).

Id. See also Dara Lind, How America’s Rejection of Jews Fleeing Nazi Germany Haunts

Our Refugee Policy Today, VOX (Jan. 27, 2017, 8:12 AM). http://www.vox.com/policy-and-

politics/2017/1/27/14412082/refugees-history-holocaust.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 16 of 30

States,

reflecting anti-immigrant and anti-Semitic sentiments prevailing at the time.

A State

Department telegram to a passenger on the ship explained the government’s position that the

passengers must “await their turns on the [visa] waiting list and qualify for and obtain

immigration visas before they may be admissible into the United States.”

Ultimately, the United States refused entry to the passengers of the St Louis, forcing it to

sail back to Europe.

Historians estimate that more than a quarter of the St. Louis passengers –

254 people – were killed in the Holocaust, including a number at Auschwitz, after being refused

entry to the U.S.

In April 2009, at a commemoration for Yom HaShoah (Holocaust Remembrance Day)

held at the U.S. Capitol before the President and members of Congress, Fred S. Zeidman,

chairman of the U.S. Holocaust Memorial Council, recalled the “infamous ship called the St.

Kristine Guerra, What the U.S. Learned from Turning Away Refugees who Fled the Nazis,

THE WASHINGTON POST (Jan. 29, 2017) https://www.washingtonpost.com/news/post-

nation/wp/2017/01/29/what-the-u-s-learned-from-turning-away-refugees-who-fled-the-

nazis/?utm_term=.e91085b6c047.

A Gallup poll taken in January 1939 asked Americans if the government should allow 10,000

refugee children, mostly Jewish, from Germany to be taken care of in American homes; 61

percent were opposed. See Ishaan Tharoor, What Americans Thought of Jewish Refugees on the

Eve of World War II, THE WASHINGTON POST (Nov. 17, 2015) https://www.washingtonpost.com/

news/worldviews/wp/2015/11/17/what-americans-thought-of-jewish-refugees-on-the-eve-of-

world-war-ii/?utm_term=.a67eb4b68817.

See “Voyage of the St. Louis,” supra note 31.

Recent images of refugee-seekers, having disembarked at U.S. airports after days-long

journeys, being immediately sent back to the countries from which they had fled, unavoidably

call to mind the passengers of the St. Louis who were turned away within sight of U.S. sanctuary.

See Appendix.

See “Voyage of the St. Louis,” supra note 31.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 17 of 30

Louis” and reminded those gathered of the “shameful result” and the consequences of inaction.

Three years later, the United States government issued a formal apology for the country’s refusal

to provide refuge for the Jewish passengers aboard the St. Louis.

Addressing the 14 surviving

passengers, a State Department official stated: “To the survivors of the MS St. Louis, on behalf

of the president and Secretary of State, I am honored to say what we should’ve said so long ago,

welcome.”

(Archival photographs from the St. Louis are contained in the Appendix).

The passengers of the St. Louis were not the only victims of America’s refusal to grant

visas to Jews and other minorities during the Holocaust. Before the St. Louis sailed, Congress

rejected a bill that would have allowed 20,000 imperiled German children to settle in this

country. Opponents took an “America-First” approach to reject the proposal, arguing that

America should first focus on its own needy and homeless citizens. The wife of the United

States immigration commissioner, Laura Delano Houghteling, refused to be swayed by the

children’s vulnerability, testifying that “20,000 charming children would all too soon grow into

20,000 ugly adults.”

Countless Jews denied visas to enter the United States ultimately perished

in Nazi concentration camps, including the Dutch teenager Anne Frank.

Historian Richard

AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE ARCHIVES, “Fred S. Zeidman’s

Remarks, Days of Remembrance Commemoration” (Apr. 23, 2009),

http://archives.jdc.org/assets/documents/stlouis_fredszeidmanremarks2009.pdf.

Kamrel Eppinger, State Department apologizes to Jewish refugees, SCRIPPS HOWARD

FOUNDATION WIRE (Sep. 26, 2012) http://www.shfwire.com/state-department-apologizes-jewish-

refugees/.

Id.

See Lind, supra note 32.

In 1938, Otto Frank first applied for immigrant visas for himself, his wife Edith, and their

two daughters Margot and Anne. See Richard Breitman, Blocked by National Security Fears?:

The Frank Family and Shifts in American Refugee Policy, 1938-1941, YIVO INSTITUTE FOR

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 18 of 30

Brietman reminds us that if not for an immigration policy steeped in fear, an elderly Anne Frank

could still be living in the United States today.

Instead she was murdered at Bergen-Belsen,

made immortal by the teenage diary that survived her. The Executive Order – signed on

Holocaust Remembrance Day – ignores the tragic lessons our Nation learned from turning our

back on Jewish refugees during World War II, and would again close America’s doors to some

of the world’s most vulnerable refugees and immigrants.

B. The Chinese Exclusion

In the late 1860s and early 1870s, Chinese immigrants, including both skilled and

unskilled laborers, enjoyed easy passage to this country under the terms of a treaty between the

United States and China.

Even with the treaty’s relaxed standards, annual Chinese

immigration never exceeded 40,000 people, and in 1890 there were only 107,000 Chinese

nationals living in the United States.

Nevertheless, hostility towards the Chinese escalated

within certain portions of the American public, who blamed wage decreases and other economic

JEWISH RESEARCH (Feb. 14, 2007), https://www.yivo.org/cimages/richardbreitman-ottofrank-

whitepaper.pdf?c=. The family was placed on a waiting list, which by 1939 had grown to

include 300,000 individuals. Id. at 2. Despite having multiple people willing to provide

affidavits for the Frank family, Otto was met with additional regulations, including proof of

booked transportation to the U.S., verification that no close relatives remained in German

territories, and the specter of the German refugee quota. Id. at 5. Ultimately, the Frank family

was denied refugee status and Anne, along with her mother and sister, all died in the

concentration camps.

Elahe Izadi, Anne Frank and her family were also denied entry as refugees to the U.S.,

WASHINGTON POST, (Nov. 24, 2015), https://www.washingtonpost.com/news/worldviews/wp/

2015/11/24/anne-frank-and-her-family-were-also-denied-entry-as-refugees-to-the-u-

s/?utm_term=.6e028f50e0dd.

See H.R. Res. 683, 114

Cong. (as passed by House, June 18, 2012). See also Kennedy,

supra note 15 at 40.

Kennedy, supra note 15 at 40.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 19 of 30

difficulties on Chinese laborers.

Although Government leaders initially resisted constituent

pressure to stop Chinese immigration,

a “campaign of organized violence against Chinese

communities took form, and the hysteria led to public pressure too violent to be resisted.”

The Chinese Exclusion Act of 1882, signed into law by President Arthur, was the “first

federal law ever passed excluding a group of immigrants solely on the basis of race or

nationality.”

The thrust of the Chinese Exclusion Act was that it barred Chinese laborers from

entering the United States for 10 years,

but it also put in place other discriminatory systems,

including a registry for all Chinese (including non-laborers) who were then legally present in the

United States.

Additionally, Chinese laborers already in the country would have to obtain a

“certificate” to return to the United States, if they ever wanted to leave the country.

The Act

also explicitly prohibited all state and federal courts from naturalizing people of Chinese origin,

regardless of whether they were legally in this country.

These sweeping restrictions were

explained only by this statement in the law’s preamble: “in the opinion of the Government of the

HARVARD UNIVERSITY LIBRARY OPEN COLLECTIONS PROGRAM, Chinese Exclusion Act

(1882), http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Feb. 7, 2017).

President Arthur initially vetoed the bill, which he viewed as incompatible with the

Burlingame Treaty. See Chester A. Arthur, “Veto of the Chinese Exclusion Act” (Apr. 4, 1882).

Kennedy, supra note 15 at 41.

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) (hereinafter “Chinese

Exclusion Act.”).

Id.

Id. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014)

Chinese Exclusion Act, § 14. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 20 of 30

United States the coming of Chinese laborers to this country endangers the good order of certain

localities within the territory thereof[.]”

The Chinese Exclusion Act was followed by a series of other laws designed to exclude

the Chinese from the United States, both physically and politically. The Scott Act of 1888

precluded Chinese laborers from leaving and reentering the United States entirely and cancelled

all previously issued “certificates” as referenced in the Exclusion Act.

This action prevented

the return of approximately 20,000 Chinese laborers who were abroad and had lawfully-obtained

certificates permitting them to re-enter.

It also froze the migration of an additional 600

Chinese individuals who were en route to the United States at the time of its enactment.

When

the Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act,

which

extended Chinese exclusion for another ten years and introduced even more restrictions.

It was

not until 1943 that Congress finally began repealing certain – and eventually all – of these

discriminatory laws.

The repeal of the Chinese exclusionary laws was a first step in re-establishing the ideals

of the Founders. In October 2011, the United States Senate finally issued an apology for the

Chinese Exclusion Act, preamble.

The Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943).

S. Res. 201, 112

Cong. (as passed by Senate, Oct. 6, 2011). See also H.R. Res. 683, 114

Cong.

S. Res. 201, 112

Cong.

Id.

The Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943).

S. Res. 201, 112

Cong.

Id.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 21 of 30

Chinese Exclusion Act and other laws.

A similar report was announced by the United States

House of Representatives

and, later, by the California State Legislature.

In each instance, the

government noted that the Chinese Exclusion Act and its companion laws were and remain

“incompatible with the basic founding principles recognized in the Declaration of Independence

that all persons are created equal[.]”

The announcements expressed a commitment to

“diversity in the United States that contributes to the country’s economic, cultural, technological,

academic, and political growth[.]”

In its apology, the California legislature observed:

The Chinese Exclusion Act set the precedent for racist foreign and national policy

that led to broader exclusion laws and fostered an environment of racism that

quickly led to the Jim Crow laws of the 1880s, and further segregation legislation

that would tear our nation apart through most of the 20

Century[.]

Simply put, our nation’s leaders recognized that racism breeds racism, and any governmental

policies that conflict with the founding ideals of this country cannot be allowed to stand. The

Executive Order, and Section 5(d) in particular, is such a policy.

Id.

H.R. Res. 683, 114

Cong.

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

S. Res. 201, 112

Cong. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014) (pointing out that,

“[p]aradoxically, the very same year that the Chinese Exclusion Act was passed, financing

abroad was completed for the Statute of Liberty. . . . While the Statute of Liberty was being built,

legislators were contradicting those very ideals by discriminating against Chinese immigrants

and lobbying Congress to do the same”).

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

Id.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 22 of 30

C. The Japanese Internment

The internment of Japanese-Americans was authorized by Executive Order 9066,

which

President Roosevelt issued in early 1942, 10 weeks after the Pearl Harbor attack. Executive

Order 9066 gave to the Secretary of War and the military commanders to whom he delegated

authority, the power to exclude any and all persons, citizens and aliens from designated areas in

order to provide security against sabotage and espionage.

The Order makes no reference to the

Japanese, just as the current Executive Order does not reference Muslims. However, within a

week of the issuance of the order, Lt. General John L. DeWitt issued the first of 108 relocation

orders resulting in the forcible evacuation of approximately 120,000 Japanese Americans,

including 70,000 citizens, to internment camps in desolate areas of the United States for the

duration of World War II.

The justification for Executive Order 9066 was “military necessity.”

However,

Congress has since acknowledged that “these actions were carried out without adequate security

reasons and . . . were motivated largely by racial prejudice, wartime hysteria, and a failure of

political leadership.”

This conclusion was bolstered by the fact that no effort was made to

7 Fed. Reg. 1407 (Feb. 19, 1942).

Id.

See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II 33,

104 (1972).

U.S. Comm’n on Wartime Relocation and Internment of Civilians, report: Personal Justice

Denied at 6-8 (96

Cong.) (1982).

50 U.S.C. § 4202. Anti-Japanese bias was palpable: polls taken in 1944 indicated that more

than 60 percent of Americans thought that whites should be prioritized in hiring decisions over

Japanese Americans. Stephen White, “Many Americans Support Trump’s Immigration Order;

Many Americans Backed Japanese Internment Camps, Too,” THE WASHINGTON POST (Feb. 2,

2017).

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 23 of 30

invoke Executive Order 9066 to authorize internment of German-Americans and/or Italian-

Americans.

In 1976, President Gerald Ford issued a proclamation acknowledging that “not only was

that evacuation wrong, but Japanese Americans were and are loyal Americans.” In 1982, the

Commission on Wartime Relocation and Interment of Civilians issued a report entitled,

“Personal Justice Denied.” The report set the stage for the historic moment in 1988 when

President Ronald Reagan signed the Civil Liberties Act, which offered a formal apology and

reparations for the “grave injustice” of evacuating, relocating and interning tens of thousands of

Japanese Americans during the war.

President Reagan, in his remarks on signing the Act,

made clear that the internment of Japanese Americans was a “grave wrong.”

Congress too

acknowledged that this measure – carried out under the false banner of “national security” –

amounted to a “fundamental violation[] of the basic civil liberties and constitutional rights of []

individuals of Japanese ancestry” and caused “enormous damages, both material and intangible,

. . . which resulted in significant human suffering[.]”

Like Executive Order 9066, the Executive Order here invokes national security as its

justification. Leaving aside the legal standards regarding how much deference such an

invocation deserves, the history of the Japanese internment counsels that we must take an

especially hard look at actions that undermine core values and freedoms in the name of national

security. In this regard, we note the statements by other federal courts that there is “no evidence

See U.S. Comm’n on Wartime Relocation and Internment of Civilians, supra note 71 at 3.

See 50 U.S.C. § 4201 et seq.

Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime

Internment of Japanese-American Civilians (Aug. 10, 1988).

50 U.S.C. § 4202.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 24 of 30

that any alien from any of the countries named in the Order has perpetrated a terrorist attack in

the United States” and that the sequence of events leading up to the Executive Order raises

questions as to whether national security concerns in this regard are “rational.” Washington v.

Trump, No. 17-35105, 2017 WL 526497, at *8-9, 10 (9th Cir. Feb. 9, 2017); see also Aziz v.

Trump, No. 117CV116LMBTCB, 2017 WL 580855, at *3 (E.D. Va. Feb. 13, 2017).

CONCLUSION

ADL and JCPA believe that enjoining Section 5(d) of the Executive Order is consistent

with the principles underlying the Constitution. Absent injunctive relief, there will almost

certainly be irreparable harm to countless people, just as there was when the United States

shamefully turned away those on the St. Louis desperately seeking safety, excluded immigrants

from China and interned Japanese Americans. As with the 254 passengers aboard the St. Louis

who died in the Holocaust, an apology years later would be woefully insufficient to address the

damage done. ADL and JCPA believe that enforcing Section 5(d) of the Executive Order risks

once again sacrificing the nation’s core values in favor of prejudice and fear – a sacrifice that

history has repeatedly proven would have profound consequences both to the persons who suffer

as a result and to the still-vibrant vision of the shining city on the hill.

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 25 of 30

Dated: March 3, 2017

Of counsel:

John B. Harris

Jeremy Goldman

Caren Decter

Jessica Smith

Rayna Lopyan

Lily Landsman-Roos

Lakendra Barajas

FRANKFURT KURNIT KLEIN & SELZ,

P.C. 488 Madison Avenue

New York, New York 10022

Respectfully submitted,

/s/ David E. Mills

David E. Mills (Bar No. 16654)

Alyssa T. Saunders (pro hac vice motion

forthcoming)

Cooley LLP

1299 Pennsylvania Avenue, NW, Suite 700

Washington, DC 20004-2400

Telephone: (202) 842-7800

Counsel for Anti-Defamation League and Jewish

Council for Public Affairs

Steven M. Freeman

Lauren A. Jones

Melissa Garlick

Michael Lieberman

ANTI-DEFAMATION LEAGUE

605 Third Avenue

New York, New York 10158

Doron F. Ezickson

ANTI-DEFAMATION LEAGUE

1100 Connecticut Avenue, Northwest,

Suite 1020 Washington, DC 20036

Counsel for Anti-Defamation League

David Bohm

DANNA MCKINTRICK, P.C.

7701 Forsyth Blvd., Suite 800

St. Louis, MO 63105

Counsel for Jewish Council for

Public Affairs

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 26 of 30

APPENDIX

The Journey of the St. Louis and its Passengers

Source: Dara Lind, “How America’s Rejection of

Jews Fleeing Nazi German Haunts our Refugee

Policy Today,” Vox (January 27 2017),

http://www.vox.com/policy-and-

politics/2015/11/19/9760060/refugees-history-

holocaust. (Last visited February 5, 2017).

Source: “

Map Showing the Voyage of the St. Louis, May 13-June 17, 1939.

”, American Jewish

Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”;

http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html (Last visited February 5, 2017).

Source: “Some of the 907 passengers on board the St.

Louis arriving in Belgium after being refused entry

into Cuba and the U.S.”, American Jewish Joint

Distribution Committee Archives, “The Story of the

S.S. St. Louis (1939)”;

http://archives.jdc.org/educators/topic-guides/the-

story-of-the-ss-st.html (Last visited February 5, 2017).

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 27 of 30

In the wake of the Executive Order, and as a tribute to Holocaust Remembrance Day on January

27, 2017, a Twitter account was established in the name of the St. Louis Manifest

(@Stl_Manifest, accessible at https://twitter.com/stl_manifest , which has tweeted out the names

and stories of the ship’s passengers, examples of which appear below and on the following

pages:

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 28 of 30

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 29 of 30

142618091

Case 8:17-cv-00361-TDC Document 72-2 Filed 03/03/17 Page 30 of 30