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Case 1:17-cv-00480-CBA Document 156 Filed 02/16/17 Page 1 of 23 PageID #: 2002

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and


HAIDER SAMEER ABDULKHALEQ
ALSHAWI, on behalf of themselves and others
similarly situated, No. 17-cv-00480-CBA

Petitioners,

- against -

DONALD TRUMP, President of the United


States; U.S. DEPARTMENT OF
HOMELAND SECURITY (DHS); U.S.
CUSTOMS AND BORDER PROTECTION
(CBP); JOHN KELLY, Secretary of DHS;
KEVIN K. MCALEENAN, Acting
Commissioner of CBP; JAMES T. MADDEN,
New York Field Director, CBP,

Respondents.

MEMORANDUM OF LAW ON BEHALF OF AMICI CURIAE MEDICAL


INSTITUTIONS, ADVOCACY ORGANIZATIONS, AND INDIVIDUAL PHYSICIANS
IN SUPPORT OF PETITIONERS WRIT OF HABEAS CORPUS AND COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF

ARNOLD & PORTER KAYE SCHOLER LLP


250 West 55th St.
New York, NY 10019

Attorneys for Amici Curiae


Case 1:17-cv-00480-CBA Document 156 Filed 02/16/17 Page 2 of 23 PageID #: 2003

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI .......................................................................................................... 1

INTRODUCTION .......................................................................................................................... 1

CASE BACKGROUND ................................................................................................................. 4

I. The Executive Order and Confusion Surrounding Its Implementation .............................. 4

ARGUMENT.................................................................................................................................. 6

The Executive Order Harms Medical Institutions and Healthcare in America .............................. 6

I. The Vital Role That Immigrant Doctors, Medical Researchers and Healthcare
Workers Perform in the American Healthcare System....................................................... 6

A. Immigrant Physicians, Researchers and Healthcare Workers are Crucial to


the Healthcare of Millions of Americans................................................................ 6

B. Immigrant Doctors and Healthcare Workers Are Especially Concentrated


In Medically Underserved Areas Such as Poor and Rural Communities ............... 9

II. The Executive Order Interferes With Patient Care and Medical Science in the
United States ..................................................................................................................... 10

A. The Executive Order Makes It Harder to Recruit Foreign Medical


Personnel, Who Already Face Rigorous Scrutiny Before Entering the
United States ......................................................................................................... 10

B. The Executive Order Disrupts the Match Program That Assigns Medical
School Graduates to Hospitals .............................................................................. 14

C. The Executive Order Jeopardizes the Ability of Doctors and Researchers


To Meet and Interact With Their Counterparts Abroad........................................ 17

D. The Executive Order Interferes With Humanitarian Care for Foreign


Nationals ............................................................................................................... 18

CONCLUSION............................................................................................................................. 20
Case 1:17-cv-00480-CBA Document 156 Filed 02/16/17 Page 3 of 23 PageID #: 2004

INTEREST OF THE AMICI

Amici are medical institutions, organizations, advocacy groups, and individual physicians

throughout the United States that have an interest in providing optimal healthcare services to

patients and in participating in cross-border collaboration to advance medical science. The

Executive Order at issue in this case is detrimental to the care of patients both in the United

States and across the globe as well as the advancement of medical science. Amici highly value

the contributions of foreign-born healthcare providers and believe that they are a critical pillar of

the American healthcare infrastructure. A list of amici is set forth in Appendix A.

INTRODUCTION

America proudly and properly describes itself as a nation of immigrants. Foley v.

Connelie, 435 U.S. 291, 294 (1978). In 2010, 12.9 percent of the population was foreign-born

and one out of every four Americans had at least one parent born outside the United States.1 The

national immigrant character is reflected in the American medical community: about 28 percent

of physicians, 40-50 percent of medical researchers, and 15 percent of registered nurses in

America were born in a foreign country.2 Among their many contributions to American

healthcare, foreign-born doctors disproportionately serve in small towns and rural areas that

suffer from a shortage of medical personnel.3

1
Brief of Technology Companies and Other Businesses as Amici Curiae In Support of
Appellees, Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 6, 2017) (citing
sources).
2
See Marcia D. Hohn et al., Immigrants in Health Care: Keeping Americans Healthy Through
Care and Innovation, George Mason University Institute for Immigration Research, at 2-5 (June
2016),
http://s3.amazonaws.com/chssweb/documents/22231/original/health_care_report_FINAL_20160
629.pdf?1467209316.
3
See Anupam B. Jena, Trumps Immigration Order Could Make It Harder To Find A
Psychiatrist or Pediatrician, FiveThirtyEight (Feb. 3, 2017),
http://fivethirtyeight.com/features/trumps-immigration-order-could-make-it-harder-to-find-a-
psychiatrist-or-pediatrician.
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Contrary to the immigrant traditions and ideals of the United States, the Presidents

January 27, 2017 Executive Order (Executive Order or Order) imposed a ban on entry into

the United States from seven predominantly Muslim countries for 90 days regardless of

individual circumstances, even when the alien already had a valid immigrant or nonimmigrant

visa. Caught in the widespread chaos and confusion created by the Executive Order are

American medical institutions, an estimated 15,000 physicians plus numerous other medical

professionals from those countries,4 and the patients they serve.

Amici are medical institutions, organizations, advocacy groups, and individual physicians

in Connecticut, New York and other areas of the United States that serve patients, train

physicians, conduct important medical research, and develop public policies advancing health

solutions for patients and providers. Together the Amici treat thousands of patients, often with

personnel who are foreign nationals, including many from the countries covered by the

Executive Order. Amici are deeply concerned about the Executive Order, which has caused:

the deportation or stranding of qualified medical personnel, or non-renewal of their

visas of medical personnel, which interferes with their patients medical needs and

damages the ability of American medical organizations to attract foreign personnel;

disruption to the national program for matching of graduates of medical schools,

including foreign medical schools, with American hospital residency and fellowship

programs, including approximately 1,000 doctors from the seven affected countries5;

4
See Donald G. McNeil Jr., Trumps Travel Ban, Aimed at Terrorists, Has Blocked Doctors,
N.Y. Times (Feb. 6, 2017), https://www.nytimes.com/2017/02/06/health/trump-travel-ban-
doctors.html.
5
See Melanie Evans, Hospitals Weigh Difficult Choice Amid Travel-Ban Uncertainty, Wall St. J.
(Feb. 12, 2017), https://www.wsj.com/articles/hospitals-weigh-difficult-choice-amid-travel-ban-
uncertainty-1486900805 (reporting that according to the Association of American Medical
Colleges roughly 1,000 doctors who applied for U.S. residency slots this year are from the
seven countries included in the White Houses travel ban.).

2
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the specter of boycotts of United States-based scientific conferences by foreign

scientists, which harms the collaboration so essential to advancing medical

knowledge; and

disruption of a core mission of American medical organizations and institutions to

deliver humanitarian healthcare, especially to foreign children and others from the

affected countries.

If, as contemplated in the Order, and as stated by key administration officials, the ban is

extended to other countries,6 then the harm to the American healthcare infrastructure and the

medical needs of patients both in and outside the United States will be exponentially magnified.

For these reasons, the American Medical Association expressed concern that this

executive order is negatively impacting patient access to care and creating unintended

consequences for our nations healthcare system.7 The American Hospital Association

similarly announced that without modification, President Trumps executive order on

immigration could adversely impact patient care, education and research.8 Patients have also

expressed their concern. In a recent article in the New England Journal of Medicine, a Muslim

6
See Face the Nation Transcript January 29, 2017: Priebus, McCain, Ellison, Face the Nation
(Jan. 29, 2017), http://www.cbsnews.com/news/face-the-nation-transcript-january-29-2017-
priebus-mccain-ellison/ (Now, you can point to other countries that have similar problems, like
Pakistan and others. Perhaps we need to take it further.).
7
AMA Urges Trump Administration to Clarify Immigration Executive Order, American Medical
Association (Feb. 1, 2017), https://www.ama-assn.org/ama-urges-trump-administration-clarify-
immigration-executive-order.
8
Rick Pollack, Statement on President Trumps Executive Order on Immigration, American
Hospital Association, (Jan. 30, 2017), http://www.aha.org/presscenter/pressrel/2017/013017-pr-
immigration.shtml.

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doctor recounted that following the Executive Order one of his patients said, I voted for Trump,

but there is no way Im going to let him take you away, doctor.9

Amici respectfully urge the Court, as it weighs the public interest-element of the test for

injunctive relief, to consider the damage done by the Executive Order to patient care, medical

education, and medical science in the United States. See Park Irmat Drug Corp. v Optum Rx,

Inc., 152 F.Supp.3d 127, 142 n.10 (S.D.N.Y. 2016) (noting that the public interest in

uninterrupted and safe medical care is a valid consideration in ruling on a motion for a

preliminary injunction).

CASE BACKGROUND

I. The Executive Order and Confusion Surrounding Its Implementation

On January 27, 2017, President Trump signed an Executive Order titled Protecting the

Nation from Foreign Terrorist Entry into the United States. Among other things, the Executive

Order suspends for 90 days immigrant and nonimmigrant entry of aliens from countries referred

to in Section 217(a)(12) of the Immigrant and Nationality Act (INA), 8 U.S.C. 1187(a)(12)

namely aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.10

The Order provides for limited exceptions to the 90-day suspension of entry for foreign

nationals traveling on various diplomatic visas and provides that the Secretaries of State and

Homeland Security can issue visas on a case-by-case basis when in the national interest, but

9
Ahmad Masri and Mourad H. Senussi, Trumps Executive Order on Immigration Detrimental
Effects on Medical Training and Health Care, New England J. Med. (Feb. 1, 2017),
http://www.nejm.org/doi/full/10.1056/NEJMp1701251#t=article.
10
The statute incorporated into the Executive Order, 8 U.S.C. 1187, sets out the requirements of
a visa waiver program, and then disallows such waivers for nationals of Iraq or Syria or other
countries designated by the State Department as a country with a government that has repeatedly
supported acts of international terrorism (i.e., Iran and Sudan), and any other country that has
been designated a country or area of concern by the Secretary of Homeland Security (i.e., Libya,
Somalia, and Yemen). Section 1187(a)(12)(A)(i) disallows visa waivers to any alien who has
been present in any of those countries after March 2011.

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provides no process or guidance for the grant of such exceptions.11 The Order also suspends the

United States Refugee Admissions Program for 120 days, suspends indefinitely the entry of all

refugees from Syria, and provides for priority consideration for future refugee claims for people

who are religious minorit[ies] in the refugees country of origin.

In the days after it was announced, the Order and the lack of clarity surrounding its

implementation caused widespread confusion.12 As the Ninth Circuit put it, [i]t was reported

that thousands of visas were immediately canceled, hundreds of travelers with such visas were

prevented from boarding airplanes bound for the United States or denied entry on arrival, and

some travelers were detained.13 Moreover, after the Order went into effect, government

officials barred lawful permanent residents (green card holders) from entering the country as the

language of the Order categorically denies entry to all aliens from the seven countries at

issue.14 Although a White House counsel subsequently issued authoritative guidance that the

Order does not apply to green card holders,15 the Order thus far has not been amended to reflect

11
Exec. Order No. 13769, 82 Fed. Reg. 8977, 8978 3(g) (Jan. 27, 2017); Washington v. Trump,
No. 17-35105, 2017 WL 526497, at *11 (9th Cir. Feb. 9, 2017) (holding that the case-by-case
waiver provision was not a sufficient safety valve for the harm caused by the Order and that
the Government offered no explanation for how these provisions would work in practice.).
12
See Laura King et al., Confusion reigns at U.S. airports as protests of Trump executive order
enter second day, L.A. Times (Jan. 29, 2017), http://www.latimes.com/nation/la-na-pol-trump-
immigration-vetting-20170129-story.htmll; Miriam Jordan et al., Donald Trumps Immigration
Order Sparks Confusion, Despair at Airports, Wall St. J. (Jan. 29, 2017),
https://www.wsj.com/articles/donald-trumps-immigration-order-sparks-confusion-despair-at-
airports-1485709114.
13
Washington v. Trump, No. 17-35105, 2017 WL 526497, at *2 (9th Cir. Feb. 9, 2017).
14
See, e.g., Aziz v. Trump, No. 1:17-CV-116, 2017 WL 580855, at *3 (E.D.Va. Feb. 13, 2017)
(finding that the Executive Order was initially applied to legal permanent residents (LPRs) and
that the government conceded that Customs and Border Patrol . . . initially stopped several
LPRs at the border in the 24 to 48 hours after the EO was signed.).
15
Donald F. McGahn II, Authoritative Guidance on Executive Order Entitled Protecting the
Nation from Foreign Terrorist Entry into the United States, Memorandum to the Acting
Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security (Jan.
27, 2017), http://www.politico.com/f/?id=00000159-fb28-da98-a77d-fb7dba170001 ([T]o

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this clarification and, in any event, considerable uncertainty exists over the authority of a White

House counsel to alter an executive order.16

By its terms, the blanket ban in the Order could expand beyond the seven countries.

Sections 3(d) and 3(e) direct the Secretary of Homeland Security and the Secretary of State to

submit to the President a list of additional nations whose citizens would be prohibited from

entering the United States based on the adequacy of a nations response to U.S. information

requests. High-ranking Administration officials, such as the White House Chief of Staff, have

suggested that broadening the Order may well occur in the near future.17

ARGUMENT

The Executive Order Harms


Medical Institutions and Healthcare in America
I. The Vital Role That Immigrant Doctors, Medical Researchers and Healthcare
Workers Perform in the American Healthcare System

A. Immigrant Physicians, Researchers and Healthcare Workers are Crucial to


the Healthcare of Millions of Americans

Foreign-born healthcare providers (HCPs) are a critical pillar of the American

healthcare infrastructure. An estimated 28 percent of physicians in the United States are

immigrants.18 Approximately fifteen percent of registered nurses,19 and 20.9 percent of direct

remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to [lawful
permanent residents].).
16
See Washington v. Trump, No. 17-35105, 2017 WL 526497, at *8 (9th Cir. Feb. 9, 2017).
([W]e cannot rely upon the Governments contention that the Executive Order no longer applies
to lawful permanent residents. The Government has offered no authority establishing that the
White House counsel is empowered to issue an amended order superseding the Executive
Order.).
17
See supra note 6.
18
See Marcia D. Hohn et al., Immigrants in Health Care: Keeping Americans Healthy Through
Care and Innovation, George Mason University Institute for Immigration Research, at 2-5 (June
2016),
http://s3.amazonaws.com/chssweb/documents/22231/original/health_care_report_FINAL_20160
629.pdf?1467209316.

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care workers are foreign-born.20 And those numbers are growing because U.S.-born HCPs alone

cannot meet the medical needs of Americans. For example, the number of foreign-born direct

care workers, which include home health aides and personal care assistants, nearly doubled

between 2001 and 2009, from 375,820 to 676,200.21

Foreign-born HCPs will be even more indispensable in the coming years. An April 2016

study by the Association of American Medical Colleges (AAMC), an organization that

includes all accredited medical schools and major teaching hospitals in the United States,

estimates a current shortfall of between 29,000 and 46,000 physicians in the United States and

projects a total physician shortfall of between 61,700 and 94,700 physicians by 2025.22

Similar shortfalls exist for direct care workers and registered nurses because the number

and proportion of older adults in the United States has grown at a rate the Center for Disease

Control and Prevention (CDC) has called unprecedented in our nations history.23 Meeting

the medical needs of an aging population will require five million direct care workers by 2030, a

48 percent increase from 2010 levels. In 2008, the United States faced a shortage of over

135,000 registered nurses.24 By 2025, the shortfall of registered nurses is projected to be around

19
Id.
20
Peggy G. Chen et al., Policy Solutions to Address the Foreign-Educated and Foreign-Born
Health Care Workforce in the United States, Health Affairs (2013),
http://content.healthaffairs.org/content/32/11/1906.
21
Id.
22
2016 Update - The Complexities of Physician Supply and Demand: The Projections from 2014
to 2025, IHS Report (Apr. 5, 2016),
https://www.aamc.org/download/458082/data/2016_complexities_of_supply_and_demand_
projections.pdf.
23
Center for Disease Control and Prevention, The State of Aging & Health in America 2013,
Atlanta, GA: Ctr. for Disease Control and Prevention, United States Department of Health and
Human Services (2013), https://www.cdc.gov/aging/pdf/State-Aging-Health-in-America-
2013.pdf.
24
Nursing Shortage, American Association of Colleges of Nursing (Apr. 24,
2014),http://www.aacn.nche.edu/media-relations/fact-sheets/nursing-shortage.

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260,000, more than twice as large as any nurse shortage experienced since the introduction of

Medicare and Medicaid in the mid-1960s.25 The American Association of Colleges of Nursing

notes that nursing schools across the country are struggling to expand capacity to meet the

rising demand for care.26

The gap between Americans medical needs and the supply of healthcare professionals

would be dramatically worse without the admission to the United States of foreign-born HCPs.

In 2016 alone, 7,460 non-U.S. citizen students/graduates of international medical schools applied

to be matched to a U.S. residency or other training program, accounting for 21 percent of the

total number of applicants.27 As noted, the percentage of foreign-born direct care workers has

increased dramatically in recent years.

HCPs from the seven banned countries play a vital role in meeting the increasing

American healthcare demands. It has been reported that more than 15,000 doctors from the

seven nations practice in the United States, including almost 9,000 from Iran, 3,500 from Syria,

and more than 1,500 from Iraq.28 Among this years foreign applicants for American residency

positions, approximately 1,000 are from the seven nations.29

25
Peter I. Buerhaus et al., The Recent Surge in Nurse Employment: Causes and Implications,
Health Affairs (June 12, 2009), http://content.healthaffairs.org/content/28/4/w657.full.
26
Nursing Shortage, American Association of Colleges of Nursing (Apr. 24,
2014),http://www.aacn.nche.edu/media-relations/fact-sheets/nursing-shortage.
27
Results and Data, 2016 Main Residency Match, National Residency Matching Program
(2016), http://www.nrmp.org/wp-content/uploads/2016/04/Main-Match-Results-and-Data-
2016.pdf.
28
Donald C. McNeil Jr., Trumps Travel Ban, Aimed at Terrorists, Has Blocked Doctors, N.Y.
Times (Feb. 6, 2017), https://www.nytimes.com/2017/02/06/health/trump-travel-ban-
doctors.html?_r=0.
29
See supra note 5.

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B. Immigrant Doctors and Healthcare Workers Are Especially Concentrated


In Medically Underserved Areas Such as Poor and Rural Communities

Foreign-born HCPs provide a disproportionate amount of medical care in the regions of

the country that encompass medically underserved areas (MUAs), medically underserved

populations (MUPs) or Health Professional Shortage Areas (HPSAs). The federal

government tracks access to medical care around the country, and designates MUAs and MUPs

based on the local ratio between the population and the number of healthcare providers, the

percentage of the population either below the poverty level or above the age of 65, and the infant

mortality rate.30 The government also designates HPSAs, which demarcate areas that lack

adequate support for healthcare.31 While there are different methodologies used by the

government to determine MUAs, MUPs, and HPSAs, they all can result in the designation of

areas with a significant need for additional primary healthcare resources.32

MUAs, MUPs, and HPSAs exist in every single state, but they are particularly prevalent

in poorer and more rural areas.33 A 2016 AAMC study found that it would take 53,000 to 96,000

30
Medically Underserved Areas and Populations (MUA/Ps), Health Resources and Services
Administration (Oct. 2016), https://bhw.hrsa.gov/shortage-designation/muap.
31
Health Professional Shortage Areas (HPSAs), Health Resources and Services Administration
(Oct. 2016), https://bhw.hrsa.gov/shortage-designation/hpsas.
32
HPSA and MUA/P Program Overview, Michigan Department of Health and Human Services,
http://www.michigan.gov/mdhhs/0,5885,7-339-71551_2945_47514-176068--,00.html.
33
For a map of MUAs showing how widespread MUAs are over the geography of various states
see Quick Maps Medically Underserved Areas/Populations (MUA/P), Health Resources and
Services Administration,
https://datawarehouse.hrsa.gov/Tools/MapToolQuick.aspx?mapName=MUA (last visited Feb.
15, 2017). See also, Donald G. McNeil Jr., Trumps Travel Ban, Aimed at Terrorists, Has
Blocked Doctors, N.Y. Times (Feb. 6, 2017),
https://www.nytimes.com/2017/02/06/health/trump-travel-ban-doctors.html (noting doctor
shortages in parts of Brooklyn and the Bronx).

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additional physicians in those areas to provide the same level of care as patients in the rest of

America experience.34

Recognizing the critical role of foreign-born physicians in meeting the health needs in

MUAs, MUPs, and HPSAs, the federal government provides incentives for foreign-born

physicians to work in these areas. For example, physicians who pursue medical education in the

United States on a J-1 visa (discussed in more detail infra Section II-A) typically must leave the

country for at least two years after completing their education programs. That requirement can

be waived, however, under the Conrad 30 Waiver Program for J-1 visa holders who provide

three years of care or more to MUAs, MUPs or HPSAs to address[] the shortage of qualified

doctors in medically underserved areas.35 These incentives impact the number of foreign

doctors in underserved areas. In a recent analysis by Nate Silvers FiveThirtyEight statistical

analysis website, [i]n counties with the greatest physician shortage, 25.6 percent of physicians

had trained abroad, compared with 19.2 percent in the low-shortage counties.36

II. The Executive Order Interferes With Patient Care and Medical Science in the
United States

A. The Executive Order Makes It Harder to Recruit Foreign Medical


Personnel, Who Already Face Rigorous Scrutiny Before Entering the United
States

Even before the Executive Order, foreign-born HCPs had to overcome significant

obstacles to work in the United States. Beyond the personal challenges of leaving behind
34
New Research Confirms Looming Physician Shortage, Association of American Medical
Colleges (Apr. 5, 2016),
https://www.aamc.org/newsroom/newsreleases/458074/2016_workforce_projections_04052016.
html.
35
Conrad 30 Waiver Program, U.S., Citizenship and Immigration Services (May 5, 2014),
https://www.uscis.gov/working-united-states/students-and-exchange-visitors/conrad-30-waiver-
program.
36
Anupam B. Jena, Trumps Immigration Order Could Make It Harder To Find A Psychiatrist
or Pediatrician, FiveThirtyEight (Feb. 3, 2017), http://fivethirtyeight.com/features/trumps-
immigration-order-could-make-it-harder-to-find-a-psychiatrist-or-pediatrician/.

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families and friends, they also must meet a variety of government and institutional requirements.

For example, residency and fellowship applicants must be certified by the Educational

Commission for Foreign Medical Graduates, which includes checks on English language

proficiency, medical education credentials and clinical skills.37 In addition, foreign-born HCPs

must obtain H-1B or J-1 visas, each with stringent requirements, including security screening

procedures.

Thousands of foreign-born HCPs work in the United States under H-1B visas,38 which

are available only to professionals engaged in a specialty occupation.39 To obtain an H-1B

visa, an applicant must have a job offer from a United States employer that has received

Department of Labor certification. For doctors, this often requires acceptance to a residency or

other training program at a medical institution, which includes vetting by the institution of the

applicants qualifications, validity of their medical degree and test scores. The applicants are

then further screened by both the Department of State and Customs and Border Protection,

including an in-person interview of the applicant at the United States embassy or consulate.40

37
See Requirements for Certification, Educational Commission for Foreign Medical Graduates
(Sep. 7, 2016), http://www.ecfmg.org/certification/requirements-for-certification.html.
38
See Characteristics of H1B Specialty Occupation Workers, United States Citizenship and
Immigration Services, at 20 (June 26, 2013),
https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-
1B/h1b-fy-12-characteristics.pdf, (showing that there were over 10,000 approved H-1B petitions
for medical personnel in 2011 and nearly 7,000 in 2012).
39
The visa permits its holder to remain in the United States for three years, although for some
visa-holders, that period can be extended for up to three more years. See H-1B Specialty
Occupations, DOD Cooperative Research and Development Project Workers, and Fashion
Models, United States Citizenship and Immigration Services (Mar. 16, 2016),
https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-
dod-cooperative-research-and-development-project-workers-and-fashion-models. See also
Understanding H-1B Requirements, United States Citizenship and Immigration Services,
https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-
requirements (laying out the requirements for obtaining an H-1B visa).
40
H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers,
and Fashion Models, United States Citizenship and Immigration Services (Mar. 16, 2016),
https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-

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Other foreign nationals enter the United States under the J-1 visa program, which covers

thousands of foreign medical personnel.41 A category of J-1 visas is reserved specifically for

foreign physicians who come to the United States for graduate medical education or training at

accredited American medical institutions.42 Beyond government scrutiny, participants in the J-1

Alien Physician program must also be admitted to a U.S. residency program, pass certain

medical board exams, and prove their competency in oral and written English.

In short, doctors and medical professionals entering the country have been thoroughly

vetted under existing procedures. Government screening alone is extensive, as ten former high-

ranking officials, explained in a declaration submitted to the Ninth Circuit: the United States

has developed a rigorous system of security vetting, leveraging the full capabilities of the law

enforcement and intelligence communities, which is applied to visa applicants multiple times.43

Unless enjoined, the Executive Order may prove to be a bridge too far for foreign HCPs.

For example, Seyed Soheil Saeedi Saravi, a young Iranian scientist, had been scheduled to travel

dod-cooperative-research-and-development-project-workers-and-fashion-models. See also Visa


Appointment & Processing Wait Times, United States Department of State (Feb. 16, 2017),
https://travel.state.gov/content/visas/en/general/wait-times.html/.
41
See, e.g., Ahmad Masri and Mourad H. Senussi, Trumps Executive Order on Immigration
Detrimental Effects on Medical Training and Health Care, New England J. Med. (Feb. 1, 2017),
http://www.nejm.org/doi/full/10.1056/NEJMp1701251#t=article (noting that, in 2014-2015,
there were over 9,000 physicians on J-1 visas representing nearly 130 countries, and finding that
nearly 2,000 hailed from Muslim-majority countries).
42
See J-1 Visa Exchange Visitor Program: Physician Program, United States Department of
State, https://j1visa.state.gov/programs/physician. The length of stay permitted by a J-1 visa may
depend on the length of the holders educational or training program (last visited Feb. 15, 2017).
43
Joint Declaration of Madeline K. Albright, Avril D. Haines, Michael V. Hayden, John F.
Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E.
Panetta and Susan E. Rice at 6, Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir.
Feb. 6, 2017), ECF No. 28-2, https://equity.ucla.edu/wp-content/uploads/2017/02/Declaration-
of-National-Security-Officials.pdf. See also, Aziz v. Trump, No. 1:17-CV-116, 2017 WL
580855, at *8 (Feb. 13, 2017) ([T]he allegations [in this case] involve persons who have passed
through extensive vetting requirements and been granted visas.).

12
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to Boston for a research fellowship to study cardiovascular medicine at Harvard.44 As a result of

the blanket ban set forth by the Executive Order, however, both his and his wifes visas were

suspended indefinitely, despite the extensive vetting process they had already undergone.45

Similarly, on January 28, 2017, the day after issuance of the Executive Order, Dr. Suha

Abushamma, a Sudanese national who is an internal medicine resident at the Cleveland Clinic

with an H-1B visa, was denied re-entry, detained for nine hours at John F. Kennedy International

Airport, and then removed.46 More generally, current holders in the United States of J-1 and H1-

B visas from the seven countries are unlikely to have their visas renewed under the Executive

Order, which would effectively result in their deportation.

These adverse effects were recognized by the Ninth Circuit in Washington v. Trump,

where the court observed that university students and faculty in the State of Washington, who

hold visas similar to those of foreign doctors, cannot travel for research, academic

collaboration, or for personal reasons, and their families cannot visit. As a result, the

Washington schools cannot consider attractive student candidates and cannot hire faculty from

the seven affected countries, which they have done in the past. 47 This is no less true of

Americas foreign-born medical students and faculty and our medical schools and hospitals.

44
Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry
Worldwide, N.Y. Times (Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us/refugees-
detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order.html.
45
Id.
46
Ann Domeck, Cleveland Clinic resident forced to leave U.S. over executive order sues
President Trump, Fox8 (Jan. 31, 2017), http://fox8.com/2017/01/31/cleveland-clinic-resident-
forced-to-leave-us-over-executive-order-sues-president-trump/. See also Amended Petition for
Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, Abushamma v.
Trump, No. 1:17-cv-00488-CBA, https://www.propublica.org/documents/item/3439950-
Amended-petition-for-writ.html.
47
Washington v. Trump, No. 17-35105, 2017 WL 526497, at *4 (9th Cir. Feb. 9, 2017).

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Moreover, none of this is lost on foreign-born scientists and HCPs. A Belgian researcher

observed that the travel ban makes you think twice about starting a career in the U.S.48

Chemist Maria Escribano, from Spain, a postdoctoral researcher at Stanford University, said

this is terrifying for science, research, education, and the future of our planet. I guess its time

for me to go back to Europe.49

B. The Executive Order Disrupts the Match Program That Assigns Medical
School Graduates to Hospitals

In its short existence, the Executive Order is already interfering with the National

Resident Matching Program (NRMP), also known as the Match. The Match uses a

mathematical algorithm to place medical-school graduates, including citizen and non-citizen

graduates of foreign medical schools, in residency and fellowship positions, most often in

teaching hospitals. In the 2017 Match, there are more than 42,000 residency applicants --

including 7,000 foreign-born graduates (roughly 1,000 of whom are from the seven affected

countries). The Match, which has been in place since 1952, has a tight, multi-step schedule for

the submission of applicant preferences and decisions by residency programs. For the 2017

academic year, registration for the Match began on September 15, 2016.50 After registering for a

Match and completing interviews, applicants are to submit by February 22, 2017 less than a

week from now a ranked list of programs at which they wish to train.51 At the same time,

48
Seema Yasmin, Trump Immigration Ban Can Worsen U.S. Doctor Shortage, Hurt Hospitals,
Scientific American (Feb. 1, 2017), https://www.scientificamerican.com/article/trump-
immigration-ban-can-worsen-u-s-doctor-shortage-hurt-hospitals/.
49
Sharon Begley, Fearful of a Trump administration, many in research call for a tutorial for
the president-elect, Stat (Nov. 9, 2016), https://www.statnews.com/2016/11/09/scientists-trump-
new-reality/.
50
2017 Main Residency Match Calendar, National Resident Matching Program,
http://www.nrmp.org/residency/main-match-events/ (last visited Feb. 12, 2017).
51
Id.

14
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program directors submit their ranked list of applicants.52 The Match then applies the algorithm

to match applicants to programs with decisions announced on March 17, 2017 and residents

beginning work a few months later.53

As a result of the Executive Order, the roughly 1,000 applicants from the seven covered

countries cannot be sure that they will be allowed to enter the United States by the start of the

residency programs.54 By the same token, the residency programs cannot be certain when those

applicants will be able to come to the United States, if at all. Thus, the program have to make

the difficult choice between selecting qualified applicants who may be barred from entering the

country, or skipping over those applicants out of fear of staffing shortages and budgetary and

planning burdens. As explained by an associate dean at Johns Hopkins University School of

Medicine, the banning of applicants from Syria or Iran will result in a residency program with

holes in it and not enough doctors to take care of the patients that the program is responsible

for.55 Atul Grover, the Executive Vice-President of the AAMC, put it this way: the

uncertainty [regarding the Match] is throwing people off.56

52
Id.
53
Id.
54
Michael Hiltzik, Another casualty of Trumps Muslim ban: U.S. medical training and rural
healthcare, L.A. Times (Feb. 1, 2017), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-ban-
medical-20170201-story.html; see also Ahmad Masri and Mourad H. Senussi, Trumps
Executive Order on Immigration Detrimental Effects on Medical Training and Health Care,
New England J. Med. (Feb. 1, 2017),
http://www.nejm.org/doi/full/10.1056/NEJMp1701251#t=article.
55
Seema Yasmin, Trump Immigration Ban Can Worsen U.S. Doctor Shortage, Hurt Hospitals,
Scientific American (Feb. 1, 2017), https://www.scientificamerican.com/article/trump-
immigration-ban-can-worsen-u-s-doctor-shortage-hurt-hospitals/.
56
Olga Khazan, Trumps Immigration Order Might Cost Thousands of Americans Access to a
Doctor, The Atlantic (Jan. 30, 2017),
https://www.theatlantic.com/health/archive/2017/01/trumps-immigration-order-will-cost-
thousands-of-americans-access-to-a-doctor/515016/.

15
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One teaching hospital in Ohio already instructed its staff to cancel residency offers to

medical students from some countries.57 Highlighting the dilemma medical institutions now

face, an official of that institution acknowledged that the Executive Order per force eliminates

applicants based on country of origin.58 Others are reluctantly considering not selecting

applicants based on their country of origin because, according to Vinny Arora, an assistant dean

at the University of Chicagos medical school, [p]rogram directors want to match the most

qualified candidates, but they also want to be sure the interns they match can start and dont

experience visa issues.59 The St. Vincent Charity Medical Center in Cleveland issued a

statement that we may be forced to turn away our best candidates for fear that their

citizenship will be an obstacle. This is detrimental to both the advancement of medicine and

the care of our patients. And it is an affront to our faith.60

As the NRMP, which administers the Match, points out: The consequences of the

Executive Order are far-reaching for Match applicants, and the upheaval it is causing is

extensive. The affected applicants have worked hard for many years to achieve their goal of

becoming physicians, and they should not be denied that opportunity because of a blanket policy

that does not consider the individual.61

57
Shashank Bengali et al., Families hoping to make the U.S. their home scramble to rearrange
their lives, L.A. Times (Jan. 27, 2017), http://www.latimes.com/world/la-fg-refugees-order-
reaction-20170127-story.html; see also Dan Diamond, Trumps travel ban rattles medical
residency programs, Politico (Jan. 31, 2017), http://www.politico.com/tipsheets/politico-
pulse/2017/01/trumps-travel-ban-rattles-medical-residency-programs-218499.
58
Shashank Bengali et al., Families hoping to make the U.S. their home scramble to rearrange
their lives, L.A. Times (Jan. 27, 2017), http://www.latimes.com/world/la-fg-refugees-order-
reaction-20170127-story.html.
59
See id.
60
Brie Zeltner, Trump Order Complicates Match Day for Northeast Ohio Hospitals, Cleveland
Plain Dealer (Feb. 3, 2017),
http://www.cleveland.com/healthfit/index.ssf/2017/02/trump_immigration_order_compli.html.
61
Maria C. Savoia and Mona M. Signer, Statement on the Executive Order Suspending Entry
into the United States, National Resident Matching Program (last accessed Feb. 12, 2017),

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C. The Executive Order Jeopardizes the Ability of Doctors and Researchers To


Meet and Interact With Their Counterparts Abroad

The Executive Order threatens to curb essential collaboration among medical

professionals, including researchers. Every year, tens of thousands of medical professionals

from over one hundred countries come to the United States to participate in conferences, deliver

patient care, conduct research, participate in medical education and engage in scientific

discourse.62 Such exchanges and meetings advance the state of patient care in the United States

and the rest of the world.

But days after the Executive Order was issued, over 6,300 scientists, including medical

professionals, vowed to boycott conferences hosted in the United States, pledging not to attend

international conferences in the US while the ban persists.63 Certain organizations that host

important medical conferences, such as the Genetics Society of America (GSA), have already

received cancellations from colleagues born in the seven Muslim-majority countries who are not

permitted to enter the United States per the Order.64 According to GSA, others have decided not

to travel to the United States in protest of the new restrictions.65 The International Society for

Autism Research deeply troubled by the Executive Order announced that we must think

http://www.nrmp.org/wp-content/uploads/2017/02/NRMP-Statement-on-Immigration-Executive-
Order.pdf.
62
CMSS Position on International Collaboration in Medicine, Council of Medical Specialty
Societies (Feb. 3, 2017), https://cmss.org/new/cmss-position-on-international-collaboration-in-
medicine/.
63
Ivan Oransky and Adam Marcus, Scientists protest immigration ban with boycotts of journals,
conferences, Stat (Feb. 1, 2017), https://www.statnews.com/2017/02/01/scientists-protest-
immigration-ban/. Link to the petition is available at
https://docs.google.com/forms/d/e/1FAIpQLSeNN_2HHREt1h-
dm_CgWpFHw8NDPGLCkOwB4lLRFtKFJqI25w/viewform.
64
Statement from GSAs Executive Committee on the U.S. Presidents Executive Order on
Immigration, Genetics Society of America (Feb. 3, 2017), https://genestogenomes.org/statement-
from-gsas-executive-committee-on-the-u-s-presidents-executive-order-on-immigration/.
65
Id.

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carefully about whether to host future international meetings for autism research in the United

States. As an international society, it would be inappropriate to hold the largest annual meeting

on autism research in any country that restricts access to our colleagues worldwide.66

Another harmful effect on scientific collaboration will arise as holders of J-1 or H-1B

visas decide not to attend international conferences for fear of not being allowed to return to the

United States. For example, an Iranian molecular geneticist finishing a postdoctoral program at

Harvard Medical School and Massachusetts General Hospital, recently expressed concern that, in

speaking at a molecular biology meeting next month in Banff, Canada, he risks being stranded in

Canada and unable to return to Massachusetts to complete his program.67

As the AAMC, the umbrella organization for U.S. medical schools and teaching

hospitals, has stated: because disease knows no geographic boundaries, it is essential to ensure

that we continue to foster, rather than impede, scientific cooperation with physicians and

researchers of all nationalities, as we strive to keep our country healthy.68 The Executive Order

interferes with this critical process.

D. The Executive Order Interferes With Humanitarian Care for Foreign


Nationals

Finally, the Executive Order hinders the ability of medical organizations to provide care

for foreign nationals, particularly those from war-torn areas. Without regard to national

66
Geraldine Dawson, Message from the INSAR President, International Society for Autism
Research (Feb. 1, 2017), http://www.autism-insar.org/president-message.
67
Lauren Morello and Sara Reardon, Meet the scientists affected by Trumps immigration ban,
Nature (Jan. 29, 2017), http://www.nature.com/news/meet-the-scientists-affected-by-trump-s-
immigration-ban-1.21389.
68
AAMC Statement on President Trumps Executive Order on Immigration, Association of
American Medical Colleges (Jan. 30, 2017), https://news.aamc.org/press-
releases/article/executive-order-immigration-013017/; see also Armstrong, et al, International
Exchange and American Medicine, New England J. Med. (Feb. 1, 2017),
http://www.nejm.org/doi/pdf/10.1056/NEJMp1701339 (noting that medical exchange occurs
across geographic boundaries, and stating that it is well known that a large proportion of the
most talented and productive research trainees come from abroad.).

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boundaries, the Hippocratic Oath counsels that doctors have special obligations to all [their]

fellow human beings, those sound of mind and body as well as the infirm.69 Following the

inclusive spirit of the Oath, United States hospitals routinely engage in borderless healthcare by

treating foreign nationals who cannot obtain necessary medical care in their countries. In

arrangements like these, hospitals sometimes provide their services pro bono.

Several of the nations leading medical centers have already identified more than three-

dozen patients from the seven affected countries who were scheduled to come to the United

States to receive medical care, but whose travel was delayed or postponed by the Executive

Order.70 Many of these treatments cannot safely be delayed.71

One of the most high-profile cases where the Executive Order impacted humanitarian

medical care is that of Fatemah Reshad, a four-month-old Iranian infant diagnosed with a serious

heart defect that doctors in her own country lacked the resources to treat.72 Fatemah was

traveling with her parents to meet her uncle in Portland, Oregon, where doctors were waiting to

evaluate her for surgery on February 5, 2017. As a result of the Executive Order, the family was

rerouted back to Iran and told to reapply for United States visas in 90 days, despite Fatemahs

immediate need for surgery. Subsequently, Fatemah has been cleared to re-enter the United

States to receive the life-saving surgery she needs, but only after state and federal officials

intervened on behalf of the family.73

69
Louis Lasagna, Hippocratic Oath - Modern Version (1964).
70
Dylan Scott and Megan Thielking, After Trump Order, Hospitals Scramble To Aid Patients
Planning To Travel To US for Care, Stat (Jan. 30 2017),
https://www.statnews.com/2017/01/30/trump-immigration-order-hospitals/.
71
Id.
72
Azadeh Ansari and Marlena Baldacci, Iranian Baby Girl Caught in Trump Travel Ban Headed
to US, Governor Says, CNN (Feb. 4, 2017), http://www.cnn.com/2017/02/03/politics/travel-ban-
iranian-baby-heart-surgery-trnd/.
73
Id.

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The Executive Order has interfered with the medical treatment of others as well.

According to a lawyer from the Center for Victims of Torture, at least twenty refugees from

Syria and Iraq with serious medical conditions are attempting to come to the United States for

medical treatment, 74 but are banned under the terms of the Executive Order. They include

Mustafa, a Syrian 17-year-old boy who lost part of his jaw and facial bone in a mortar attack on

his home when he was 13, and who was scheduled for reconstructive surgery at Shriners

Hospital in Galveston, Texas in April.75 The Executive Order curtailed his travel plans and it is

presently unclear whether he will be able to return to the United States before he turns 18, the

typical age limit to receive free care from the Shriners Hospital.76 Other similarly affected

Syrian children who were planning to receive domestic medical care include Mohammed, a 6-

year-old scheduled to receive cancer treatments for Ewing sarcoma and Hamzi and Jinan, 14-

and 10-year-old siblings who are progressively losing their eyesight.77

The medical outcomes of the desperate and tragic plights of these children and their

families have yet to be learned. But it is safe to observe that, but for the numerous courts who

issued partial or complete stays of the implementation of the Executive Order and the outcry of

many concerning the ban, these children would have lost all hope of receiving critical medical

treatment in this country.

CONCLUSION

Although some of the harm to the public interest is long term, much of the harm is

immediate and can only be redressed by a preliminary injunction. A preliminary injunction


74
Kelly Terez, Children and Refugees Who Planned Medical Care in the US Stuck After Trump
Executive Order, ABC Radio (Jan. 31, 2017), http://abcnewsradioonline.com/health-
news/children-and-refugees-who-planned-medical-care-in-the-us-stu.html.
75
Id.
76
Id.
77
Id.

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would clear the way for the immediate provision of health care by, and medical collaboration

with, medical personnel who are barred from entering the United States because they are from

one of the seven countries identified in the Order. Similarly, an injunction would block the denial

of visa renewals for physicians from the targeted nations who are already in the United States

and providing care to their respective communities. Additionally, as described above, the Order

directly interferes with the Match program, which is actively ongoing and has key deadlines over

the next few weeks. For these and other foregoing reasons, the Court should find that an

injunction of the Executive Order would benefit the public interest and, on the collective

submissions of the plaintiffs and aligned amici, grant the declaratory and injunctive relief

requested by plaintiffs.

Dated: New York, New York


February 16, 2017
ARNOLD & PORTER KAYE SCHOLER LLP

By: /s/ Manvin S. Mayell


Manvin S. Mayell
Gregory J. Wallance
Steven G. Tepper
Jessica Heller
Colleen Lima
G. Alex Sinha

250 West 55th Street


New York, NY 10019
Telephone: (212) 836-8000

Attorneys for Amici Curiae

21

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