HIRC files amicus curiae brief in NY case against Trump’s executive orders on immigration

Harvard Law students also respond to call to work with ACLU to challenge administration's ban

HIRC group at conference table

Photo courtesy of HIRC Students and staff of the Harvard Immigration and Refugee Clinical Program. On February 16, HIRC filed an amicus brief in a New York case against President Trump’s recent executive orders regarding immigration.

Two students who have been working with the Harvard Immigration and Refugee Clinical Program following the Trump administration’s executive orders on immigration recently wrote about their work and the impact of their collaborations with other students, faculty and attorneys.


Nathan MacKenzie ’17 via HIRC — The Harvard Immigration and Refugee Clinical Program (HIRC) filed an amicus curiae brief today in the Eastern District of New York case against President Trump’s Muslim Ban, one of several cases currently challenging the president’s actions on immigration.

The case, Darweesh v. Trump, focuses on the President’s authority to ban entry into the United States on the basis of national origin. The lead plaintiffs, Hameed Khalid Darweesh, an interpreter for U.S. troops in Iraq, and Haider Sameer Abdulkhleq Alshawi, whose wife worked as an accountant for an American contract security firm, were en route to the United States when President Trump signed the Executive Order that established the ban. Immigration officials detained both men at John F. Kennedy International Airport. The ACLU later filed suit against the President on behalf of these men and other similarly situated individuals.

HIRC’s brief makes three distinct arguments for why the ban should not stand.

First, the brief contends that the President has overstepped the discretion afforded him under the Immigration and Nationality Act (INA) in a manner that runs afoul of the Constitution, violating the Establishment Clause of the First Amendment and the Equal Protection and Due Process Clauses of the Fifth Amendment.

Second, HIRC argues that a nondiscrimination clause in the INA prohibits the president from instituting a ban on the basis of national origin. That nondiscrimination clause, within the section of the INA that deals with immigrant visas, prohibits discrimination on the basis of “race, sex, nationality, place of birth, or place of residence.” While the INA allows the President some discretion in suspending entry to the United States, HIRC’s brief argues that, given well-established principles of statutory construction, specific language should override general language.

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Harvard Law students work with ACLU to challenge Trump administration immigration order

Carys Golesworthy ’17 via HIRC

The 3rd floor wing of Wasserstein Hall that houses the Harvard Law School Immigration and Refugee Clinic is often a hub of activity. But last Friday, it was packed to capacity. Students perched on the arms of couches, crowded in corners, and angled for space around a small table. The call had gone out looking for students to help the ACLU with litigation research related to President Trump’s recent Executive Order restricting entry to the United States — and students responded in force. By Friday evening the group had grown to over fifty students. The students would spend their weekend conducting legal research to assist the ACLU in the ongoing case of Darweesh v. Trump, which challenges the Trump Administration’s Muslim ban.

In that case, the ACLU represents lead plaintiffs Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, Iraqi men who were detained after arriving at JFK Airport in New York City on January 27. The ACLU filed suit against the President on behalf of these men and a nationwide class of similarly situated individuals, seeking habeas relief and declaratory and injunctive relief.

When the government filed a motion to dismiss the petition last Friday, HLS students jumped at the chance to help the ACLU research the relevant issues for its forthcoming brief. Research requests came in throughout the weekend and into the next week, with students signing up to take on each assignment as the need arose. They found themselves researching topics ranging from class actions, discrimination law, constitutional law, statutory interpretation, standards of review, and a statute’s legislative history, among others.

Some of the students have worked with the Harvard Immigration and Refugee Clinic in the past, or have taken law school classes on immigration and refugee law. But most volunteers came into the project with limited subject matter knowledge. Some are still in their first year of law school, while others are in their last semester, with plans to work in the fields of patent law, administrative law, trade law. Yet all felt called to action by a desire to assist the lawyers challenging President Trump’s executive orders, which restrict entry and reentry into the United States for citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Immediately following the order, lawyers around the country jumped into action. James Pollack, a 1L working with the student group, recalls being struck by stories in the news of these “superhero” lawyers who could “pass the police line, demand information, work to reunite families, and ultimately stop an Executive Order, all from the floor of an airport.” He wanted to put the legal skills he had gained so far toward that effort—and he did, contributing case law and research on the statutory rights of individuals to apply for asylum.

Ben Shiroma, another 1L on the team, shared that feeling, noting that “it is important to take any opportunity I can to do this type of work.” Ben provided the ACLU team with case research on the proper standards of review under which the judiciary should review the Executive Order.

While this team of students was helping the ACLU research issues for its brief, another group of student volunteers helped to research and write HIRC’s own amicus curiae brief in the case. Both briefs were filed on the night of Thursday, February 16.


Third, HIRC articulates how the Muslim Ban directly violates asylum law and other protections afforded to refugees and torture victims. Under both domestic and international law, anyone who arrives at the border or is physically present in the United States can apply for asylum if she fears persecution on account of her race, religion, nationality, political opinions, or membership in a particular social group. The government is also prohibited from removing that individual to a country where she is likely to face persecution and/or to a country where she is likely to be tortured or subjected to cruel and unusual punishment.

Over the past two weeks, ten students from Harvard Law School, worked with attorneys from Skadden, Arps, Slate, Meagher & Flom to research and formulate these arguments concerning statutory interpretation. The students are: Mana Azarmi ’17, Zoe Egelman ’18, Carys Golesworthy ’17, Andrew Hanson ’17, Nathan MacKenzie ’17, Isabel Macquarrie ’19, Nadia Sayed ’17, Leora Smith ’17, and Amy Volz ’18. They were supervised by Clinical Professor Deborah Anker and Senior Clinical Instructors Phil Torrey and Sabi Ardalan.