Full text
Motion for Leave to File Brief of Amicus Curiae of
United Nations High Commissioner for Refugees, No. 3:18-CV-06180
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Patrick W. Pearsall, D.C. Bar No. 975801
Appearance Pro Hac Vice
1099 New York Ave., NW
Washington, DC 20001
(202) 639-6000
Brian Hauck, Cal. Bar No. 303058
633 W. 5th St.
Los Angeles, CA 90071
(213) 238-5100
Jenner & Block LLP
Counsel for Amicus Curiae Office of United Nations High Commissioner for Refugees
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
East Bay Sanctuary Covenant; Al Otro Lado;
Innovation Law Lab; and Central American
Resource Center in Los Angeles,
Plaintiffs,
v.
Donald J. Trump, President of the United States,
in his official capacity; Matthew G. Whitaker,
Acting Attorney General, in his official
capacity; U.S. Department of Justice; James
McHenry, Director of the Executive Office for
Immigration Review, in his official capacity;
Executive Office for Immigration Review;
Kirstjen M. Nielsen, Secretary of Homeland
Security, in her official capacity; U.S.
Department of Homeland Security; Lee Francis
Cissna, Director of the U.S. Citizenship and
Immigration Services, in his official capacity;
U.S. Citizenship and Immigration Services;
Kevin K. McAleenan, Commissioner of U.S.
Customs and Border Protection, in his official
capacity; U.S. Customs and Border Protection;
Ronald D. Vitiello, Acting Director of
Immigration and Customs Enforcement, in his
official capacity; Immigration and Customs
Enforcement,
Defendants.
Case No. 3:18-CV-06810-JST
The Honorable Jon S. Tigar
MOTION OF OFFICE OF
UNITED NATIONS HIGH
COMMISSIONER FOR
REFUGEES FOR LEAVE TO
FILE AMICUS CURIAE BRIEF
Hearing Date: Dec. 19, 2018
Case 4:18-cv-06810-JST Document 81 Filed 12/05/18 Page 1 of 5
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Motion for Leave to File Brief of Amicus Curiae of
United Nations High Commissioner for Refugees, No. 3:18-CV-06180
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT: The Office of the United Nations High Commissioner
for Refugees (“UNHCR”) respectfully requests leave to file the appended brief as amicus curiae
in the above-captioned case. Counsel for Plaintiffs have consented to this filing. Counsel for
Defendants have not consented; Defendants consent to a filing only insofar as it is half the length
of the parties’ primary briefs. The enclosed brief is consistent with the Court’s local rules, and
UNHCR is mindful of the Court’s admonition that amici should “remember the basic imperative
of brevity.” Dkt. No. 50 at 2:3.
STATEMENT OF INTEREST
UNHCR is the organization entrusted by the United Nations General Assembly with
responsibility for providing international protection to refugees and others of concern and, together
with national governments, for seeking permanent solutions to their problems.1 UNHCR exercises
its supervisory responsibility by issuing interpretative guidelines on the meaning of various
international refugee instruments, in particular the Convention Relating to the Status of Refugees
(“1951 Convention”), July 28, 1951, 189 U.N.T.S. 137, and the Protocol Relating to the Status of
Refugees (“1967 Protocol”), Jan. 31, 1967, 606 U.N.T.S. 267, as implemented in the Refugee Act
of 1980 (“Refugee Act”), Pub. L. No. 96-212, 94 Stat. 102. UNHCR’s views are informed by its
more than six decades of experience supervising the treaty-based system of refugee protection.
LEGAL STANDARD
The decision whether to permit an amicus to be heard rests with the discretion of the court.
Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), overruled on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995). “Generally, courts have exercised great liberality in permitting an
amicus curiae to file a brief in a pending case.” In re Roxford Foods Litig., 790 F. Supp. 987, 997
1 This Motion does not constitute a waiver, express or implied, of any privilege or immunity which
UNHCR and its staff enjoy under applicable international legal instruments and recognized
principles of international law. See Convention on the Privileges & Immunities of the United
Nations, Feb. 13, 1946, 1 U.N.T.S. 15.
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Motion for Leave to File Brief of Amicus Curiae of
United Nations High Commissioner for Refugees, No. 3:18-CV-06180
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(E.D. Cal. 1991) (quoting United States v. Louisiana, 751 F. Supp. 608, 620 (E.D. La. 1990)).
There are no particular prerequisites that must be established prior to qualifying for amicus status:
“[A]n individual seeking to appear as amicus must merely make a showing that his participation
is useful to or otherwise desirable to the court.” Id. (quoting Louisiana, 451 F. Supp. at 620).
“District courts frequently welcome amicus briefs from non-parties concerning legal issues that
have potential ramifications beyond the parties directly involved or if the amicus has ‘unique
information or perspective that can help the court beyond the help that the lawyers are able to
provide.’” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D.
Cal. 2005) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003)).
ARGUMENT
This case involves a challenge to recent changes in federal asylum policy, and requires the
Court to interpret and apply United States refugee law. As Congress passed the Refugee Act of
1980 expressly to “bring United States refugee law into conformance with the” United States’
international law obligations, international refugee law is highly significant to this Court’s analysis
of the issues in this case. INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987). Given its
extensive experience supervising the treaty-based system of refugee protection, UNHCR has a
“unique” and specialized “perspective that can help the court” understand the “potential”
international law “ramifications” of the policies and legal questions at issue. NGV Gaming, Ltd.,
355 F. Supp. at 1067 (quoting Cobell, 246 F. Supp. 2d at 62).
Indeed, UNHCR regularly presents its opinions to national courts in pending cases,
including the federal courts of the United States. Consistent with UNHCR’s role and experience,
the Supreme Court of the United States and lower federal courts have turned to UNHCR for its
“significant guidance” in interpreting the United States’ obligations under international refugee
instruments. E.g., Cardoza-Fonseca, 480 U.S. at 439 n.22; see e.g., Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017) (en banc). Given its role and experience, UNHCR
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Motion for Leave to File Brief of Amicus Curiae of
United Nations High Commissioner for Refugees, No. 3:18-CV-06180
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respectfully submits that the views expressed in its amicus brief will assist the Court in evaluating
the United States’ international law obligations that are relevant to this case.
CONCLUSION
For the foregoing reasons, UNHCR respectfully requests this Court’s leave to file the
attached amicus curiae brief as of December 5, 2018.
Dated: December 5, 2018
Respectfully submitted,
/s/ Patrick W. Pearsall
PATRICK W. PEARSALL
Counsel of Record
Appearance Pro Hac Vice
D.C. Bar No. 975801
1099 New York Ave., NW
Washington, DC 20001
(202) 639-6000
BRIAN HAUCK
Cal. Bar No. 303058
633 W. 5th St.
Los Angeles, CA 90071
(213) 239-5100
JENNER & BLOCK LLP
Counsel for Office of United
Nations High Commissioner for Refugees
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Motion for Leave to File Brief of Amicus Curiae of
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CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of December 2018, I electronically filed the foregoing
Motion for Leave to File Amicus Brief together with the appended Brief of Amicus Curiae with
the Clerk of Court for the United States District Court for the Northern District of California by
using the Court’s CM/ECF system. Participants in the case who are registered CM/ECF users will
be served by the CM/ECF system. Notice of this filing will be sent by first-class mail to anyone
unable to accept electronic filing as indicated on the notice of electronic filing. Parties may access
this filing through the Court’s CM/ECF system.
Dated: December 5, 2018
Respectfully submitted,
/s/ Patrick W. Pearsall
PATRICK W. PEARSALL
Appearance Pro Hac Vice
D.C. Bar No. 975801
1099 New York Ave., NW
Washington, DC 20001
(202) 639-6000
BRIAN HAUCK
633 W. 5th St.
Los Angeles, CA 90071
(213) 239-5100
JENNER & BLOCK LLP
Counsel for Office of United Nations
High Commissioner for Refugees
Case 4:18-cv-06810-JST Document 81 Filed 12/05/18 Page 5 of 5