Korematsu Center joins children of Japanese internment litigants to fight travel ban

February 16, 2017

The Fred T. Korematsu Center for Law and Equality (Korematsu Center) — joined by the children of litigants in the Japanese relocation and incarceration cases from World War II, civil rights organizations, and national and New York bar associations of color — filed an amicus brief today in Darweesh and State of New York v. Trump, pending in the U.S. District Court for the Eastern District of New York. The brief supports a legal challenge to the Trump administration's Executive Order 13769 (January 27, 2017), entitled "Protecting the Nation from Foreign Terrorist Entry into the United States".

The petitioners in Darweesh allege that the Executive Order violates the First, Fifth and Fourteenth Amendments, the Immigration and Nationality Act, the United Nations Convention Against Torture, and the Administrative Procedure Act. The federal government argues that the court should defer to the executive branch with respect to the Executive Order because it concerns immigration and that courts have historically deferred to the executive branch on immigration issues.

In their amicus brief, the Korematsu Center and joining amici assert that courts can and should review executive branch action on immigration. In addition, the "plenary power doctrine" justifying deference to the executive branch is based on a string of overtly racist cases decided by the same court that upheld segregation in Plessy v. Ferguson. During World War II, the federal government used arguments similar to those it has submitted in opposing Washington state's challenge. In accepting those arguments then, the Court acquiesced to the incarceration of Japanese Americans by executive order. Those arguments should have been rejected then and they should be rejected now — the 9th Circuit and the District Court for the Eastern District of Virginia have already rejected them.

With respect to the filing, Professor Robert S. Chang, executive director of the Korematsu Center, stated that "It is so heartening to see these civil rights organizations and the bar associations of color, representing hundreds of thousands of lawyers, come together to stand with Jay Hirabayashi, Holly Yasui, and Karen Korematsu to support the communities and individuals most harmed by this executive order."

The next court hearing in the Darweesh case is scheduled for February 21, 2017.

Individuals and organizations that have joined the amicus brief include: the Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, Holly Yasui, Asian Americans Advancing Justice | AAJC, Asian Americans Advancing Justice | Asian Law Caucus, Asian Americans Advancing Justice | Atlanta, Asian Americans Advancing Justice | Chicago, Asian Americans Advancing Justice | Los Angeles, the Asian American Bar Association of New York (AABANY), the Asian American Legal Defense and Education Fund (AALDEF), the Hispanic National Bar Association (HNBA), LatinoJustice PRLDEF, Inc., the National Asian Pacific Bar Association  (NAPABA), the National Bar Association, the National Native American Bar Association (NNABA), and the South Asian Bar Association of North America (SABA North America).

Attorneys from Akin Gump Strauss Hauer & Feld LLP, including New York litigation partner Robert Johnson, associates Elizabeth Rosen, Sofie Syed, and Daniella Roseman, and Los Angeles litigation senior counsel Jessica Weisel served as pro bono counsel on the brief.  The amici were also represented by New York corporate partner Alice Hsu and investment funds associates Theresa Perkins, Ashley Ruocco Cocciardi and William Meehan.  Stated Ms. Hsu, "The outpouring of public interest in these cases, represented by amicus briefs such as the Korematsu Center's, speaks to the complexity of the legal questions at issue."

The amicus brief is available here.

The Korematsu Center's other amicus filings in other challenges to the executive order can be found here.

Robert S. Chang (Korematsu Center)