Hawaii Federal District Court Converts TRO Against Travel Ban To Preliminary Injunction

Yesterday a Hawaii federal district court granted the state of Hawaii's motion to convert its prior temporary restraining order against President Trump's second travel ban Executive Order into a temporary injunction. In State of Hawai'i v. Trump, (D HI, March 29, 2017), the court concluded that "Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim...."  The court said in part:

The Court determined in its TRO that the preliminary evidence demonstrates the Executive Order’s failure to satisfy Lemon’s first test.... As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination.

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order.... No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door.

Virginia Federal Court OK's Trump's Second Travel Ban EO

While federal district courts in Hawaii and Maryland have issued nationwide injunctions barring enforcement of President Trump's second travel ban Executive Order finding that it violates the Establishment Clause, a Virginia federal district court has now reached an opposite conclusion.  In Sarsour v. Trump, (ED VA, Marc 24, 2017), the court said in part:

Given the revisions in EO-2, the question is now whether the President's past statements continue to fatally infect what is facially a lawful exercise of presidential authority. In that regard, the Supreme Court has held that "past actions [do not] forever taint any effort on [the government's] part to deal with the subject matter. . . ." This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. And while the President and his advisors have continued to make statements following the issuance of EO-1 that have characterized or anticipated the nature of EO-2, the Court cannot conclude for the purposes of the Motion that these statements, together with the President's past statements, have effectively disqualified him from exercising his lawful presidential authority under Section 1182(f). In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President's statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.

The Hill reports on the decision.

Another Suit Challenges Trump's Latest Travel Ban Executive Order

Last week, another suit was filed challenging President Trump's latest travel ban Executive Order on, among others, Establishment Clause and equal protection grounds.  The suit was brought by the largest organization of Shi’a Muslims in the United States,as well as by a Yemeni couple living in the United States. The complaint (full text) in Universal Muslim Association of America, Inc. v. Trump, (D DC, filed 3/23/2017), seeks a nationwide injunction barring the government from enforcing the sections of the Executive Order that temporarily bar or make more difficult travel into the U.S. by nationals of certain majority-Muslim nations.  As explained by a press release from Americans United:

There are two sets of plaintiffs in the case. They include the Universal Muslim Association of America (UMAA), the country’s largest organization of Shi’a Muslims, whose members are being deprived of religious learning, worship and services because their religious scholars almost exclusively hail from Iran, Iraq and Syria.  One of their scholars has already been denied entry under the first Muslim ban executive order, and he and other scholars are likely to be denied entry again.  The second set of plaintiffs are John and Jane Doe -- parents blocked from bringing their children home from Yemen.

Another Court Bars Enforcement of Trump's Second Travel Ban

As reported by Bloomberg Politics, yesterday a Maryland federal district court became the second court to bar enforcement of part of President Trump's second "travel ban" Executive Order. In International Refugee Assistance Project v. Trump, (D MD, March 16, 2017), the court issued a nationwide preliminary injunction barring enforcement of Section 2(c) of the Second Executive Order. That section imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The court said in part:

The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

5 Judges In 9th Circuit Would Uphold Trump's First Travel Ban

Last month, a 3-judge panel of the U.S. 9th Circuit Court of Appeals refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's first "travel ban" Executive Order. (See prior posting.)  On March 8, after the President issued a narrower and more focused new Executive Order, a 3-judge panel of the 9th Circuit granted the government's unopposed motion to dismiss its underlying appeal of the district court's decision, leaving the case pending at the district court level. A judge of the 9th Circuit then called for a vote on en banc reconsideration of the order to dismiss in order to vacate the panel's original opinion upholding the district court's stay. In State of Washington v. Trump, (9th Cir., March 15, 2017), reconsideration failed to receive a majority vote.  However five judges (Judges Bybee, Kozinski, Callahan, Bea, and Ikuta) filed a dissenting opinion, criticizing the panel's original rationale for upholding the stay.  The dissenters focused on the Supreme Court's decision in Kleindienst v. Mandel (1972) relating to the deference which courts should give to executive action affecting aliens who are outside the U.S.  CNN points out that the five dissenters were all appointed by Republican presidents.

Hawaii Federal Court Bars Enforcement of Key Provisions of Second Travel Ban

Today a Hawaii federal district court issued a nationwide temporary restraining order prohibiting enforcement of Section 2  (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees) of President Trump's second "travel ban" Executive Order.  The Executive Order was scheduled to go into effect tomorrow. (See prior posting.)  The lawsuit was brought by the state of Hawaii and by the Imam of the Muslim Association of Hawai‘i.  In State of Hawaii v. Trump, (D HI, March 15, 2017), a Hawaii federal district court concluded that:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

The court explained its conclusion in part as follows:

The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.... The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.”... The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.

According to Hawaii News Now,  President Trump reacted to the ruling during a rally in Nashville, saying in part:

This is, in the opinion of many, an unprecedented judicial overreach. This ruling makes us look weak, which by the way, we no longer are, believe me.  We're going to fight this terrible ruling. We're going to fight this case as far as it needs to go, including all the way up to the Supreme Court.

Washington Post reports on today's decision. Josh Blackman's Blog has a lengthy post reviewing cases on the application of the Establishment Clause to immigration law matters and reaching a different conclusion than did the Hawaii court about the Executive Order's constitutionality..

Trump Issues More Focused Travel Ban and Refugee Restrictions

As reported by the Washington Post, yesterday President Trump issued a narrower and more focused Executive Order (full text) imposing a 90-day suspension of entry into the United States by nationals of six Muslim-majority nations-- Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraqi nationals are no long included in the travel ban, though they may be subjected to increased scrutiny.  The Order justifies this list of nations:

Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States.... 

This new Order exempts, among others, lawful permanent residents of the U.S. and dual nationals traveling on other country passports.  The Order comes as the President's broader Order issued in January remains tied up in the courts.  Yesterday's Order begins with a lengthy section setting out justifications for the earlier Order.  Section 1.(b)(iv) lays out the Administration's argument against charges that the earlier Order favored Christian refugees over others:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.

Like the earlier Order, the new one suspends refugee entry of 120 days and limits the number of refugees in fiscal 2017 to 50,000. However, in the new Order Syrian refugees are not singled out for a longer suspension.

New Suit Challenges Syrian Refugee Ban In Trump Executive Order; Hawaii Suit Moves Ahead

The portion of President Trump's travel ban Executive Order which suspends entry of refugees from Syria into the United States was challenged in a lawsuit filed on Monday in a Wisconsin federal district court by a Sunni Muslim who was granted asylum status because of torture and religious persecution he had
suffered in Syria.  The complaint (full text) in Doe v. Trump, (WD WI, filed 2/13/2017), says that the ban prevents plaintiff from bringing his wife and 3-year old daughter to the U.S. from Syria under a derivative asylum petition which is being processed by the government. The Executive Order prevents USCIS from adjudicating the petition and the State Department from issuing visas to his family.  It also contends that the nationwide temporary restraining order issued by a Washington federal district court is not broad enough to cover this situation because the TRO applies only to enforcement at "United States borders and ports of entry." This new suit alleges that the Executive Order violates the Establishment Clause, the Equal Protection and Due Process clauses and various statutory provisions. WRN News reports on the lawsuit.

Meanwhile, Hawaii's Attorney General announced yesterday that a federal district judge has partially lifted a stay he imposed last week on Hawaii's suit against the Executive Order. This allows an Hawaii resident to be added as a plaintiff.  The court also allowed Hawaii to file an amended complaint (full text) adding a challenge under the Religious Freedom Restoration Act. KHON News reports on these developments.

Virginia Federal Judge Says Trump Travel Ban Likely Violates Establishment Clause

Yesterday another court ruled against President Trump's Executive Order that temporarily bars entry into the country of individuals from seven majority-Muslim nations.  In Aziz v. Trump, (ED VA, Feb. 13, 2017), a Virginia federal district court concluded that Virginia had produced unrebutted evidence that it is likely to succeed on its Establishment Clause claim, saying in part:

The "Muslim ban" was the centerpiece of the president's campaign for months.... [Rudy] Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy.

The court enjoined enforcement of Section 3(c) of the Executive Order at any port of entry against Virginia residents how either were lawful permanent residents or who held a valid student visa or work visa at the time the Executive Order was signed. NBC4 News reports on the decision.

Class Acton Lawsuit Filed Against Travel Ban

On Tuesday, another lawsuit was filed challenging President Trump's so-called travel ban Executive Order.  This suit was brought on behalf of two refugee agencies-- International Refugee Assistance Project and HIAS--and by several individuals.  The complaint (full text) in International Refugee Assistance Project v. Trump, (D MD, filed 2/7/2017) asks a Maryland federal district court to certify the suit as a class action on behalf of all persons in the United States for whom the Executive Order interferes with family reunification or with the ability to travel internationally and return to the U.S.  The complaint includes claims based on the Establishment Clause, Equal Protection Clause and Religious Freedom Restoration Act, among others, and contends:

President Trump has repeatedly made clear his intent to enact policies that exclude Muslims from entering the United States and favor Christians seeking to enter the United States.

HIAS issued a press release announcing the filing of the lawsuit.

More Primary Source Material On Travel Ban Challenge-- Briefs Are In; Oral Arguments Tomorrow

A flurry of filings have been submitted to the U.S. 9th Circuit Court of Appeals in the U.S. government's attempt to obtain a stay of the temporary restraining order against enforcement of much of President Trump's immigration and refugee executive order. Both sides have filed memoranda supporting their positions.  In addition, eight amicus briefs have been filed.  Links to all the filings are available on the 9th Circuit's website. The court will hear oral arguments by telephone on Tuesday, February 7, 2017 at 3:00 p.m. PST and will promptly make recordings publicly available. New York Times reports on developments.

Hawaii Sues Trump Over Travel Ban

Last Friday, the state of Hawaii filed a lawsuit against President Donald Trump challenging his Executive Order imposing a travel ban on individuals from seven Muslim countries and imposing a moratorium on refugee admissions. The complaint and Memorandum in Support (full text of press release, complaint and Memorandum in support of TRO) in State of Hawai'i v. Trump, (D HI, filed 2/3/2017) particularly emphasize Establishment Clause concerns with the Executive Order. Plaintiff's Memorandum in Support states in part:

The President and his aides have made it abundantly clear that they intend to exclude individuals of the Muslim faith, and that this Order—which bans travel only with respect to certain Muslim-majority countries—is part of that plan....  Sections 5(b) and 5(e) also explicitly direct the government to prioritize religious refugee claims if the “religion of the individual is a minority religion in the individual’s country”—a system of religious preference that President Trump told the media was expressly designed to favor Christians....

In the Establishment Clause context, these statements matter. Because Lemon’s first step is concerned with “whether [the] government’s actual purpose is to endorse or disapprove of religion,” courts routinely look to the public declarations of an act’s originator to discern its true aim.

West Hawaii Today reports on the lawsuit.

Trump's Immigration Executive Order Faces 1st Amendment Challenges

As reported by the Washington Post, yesterday President Trump signed an Executive Order (full text) suspending for 90 days immigrant and non-immigrant entry into the U.S. of aliens from seven Muslim-majority countries-- Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. (It should be noted that the countries to which the Executive Order is applicable is discoverable only by elaborate cross references in Sec. 3(c) of the Order that ultimately lead to this list developed last year by the Department of Homeland Security under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of travelers not eligible to participate in the visa waiver program). The Executive Order does not apply to those entering under various diplomatic visas.

The Executive Order also suspends admission of all refugees for 120 days, and of Syrian refugees for an indefinite period.  It provides that when refugee admissions are resumed:

the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.

Following up on this provision, Trump told the Christian Broadcasting Network that priority will be given to persecuted Christians in the Middle East, particularly Syria. The Legal Director of the ACLU in a post earlier today argued that the Executive Order's targeting of Muslims and favoring of Christians violates the Establishment Clause. Meanwhile CAIR announced that it will be holding a news conference Monday on a lawsuit that it will file in federal district court in Virginia to "challenge the constitutionality of the order because its apparent purpose and underlying motive is to ban people of the Islamic faith from Muslim-majority countries from entering the United States."

DHS Removes NSEER Rules, Making Any Muslim Registry Program By Trump More Difficult

Yesterday the Department of Homeland Security issued a release (full text) removing regulations relating to the  National Security Entry-Exit Registration System (NSEERS).  As reported by Vox, in 2011 President Obama had suspended the program, which targeted Muslims, by removing all countries from the list of those to whom the registration requirements apply. The program as it operated after 9-11 required males on non-immigrant visas who are 16 years old or older from 25 countries-- 24 of them Muslim countries-- to register.  The much-criticized program led to 13,000 deportations. Yesterday's action completely removes the regulations.  The Department of Homeland Security, finding that the data captured under SEERS is now available through other means, concluded that the removal of the old rules is merely procedural to delete "regulations related to an outdated, inefficient, and decommissioned program."  DHS was thus able to delete the old rules without going through the notice and comment requirements of the Administrative Procedure Act by invoking the exception for "rules of agency organization, procedure, or practice."

The action, effective with publication in today's Federal Register, means that the incoming Trump Administration, which has variously called for registration of Muslim immigrants, or those entering the U.S. from Muslim countries, will need to go through the full Administrative Procedure Act notice-and-comment requirements to implement a registration system. It will not be able to just reinvigorate SEERS. New York Times also reports on the action by DHS.

Britain Releases Report On Integration of Ethnic Communities

Britain's Department for Communities and Local Government yesterday released a report (full text) (Executive Summary) by Dame Louise Casey on integration and opportunity in isolated and deprived communities. It examines immigration and settlement patterns. As reported by BBC News, the report gives attention to the rapid increase in Britain's Muslim population which stands at 2.8 million-- a 72% increase from 2001 to 2011.  In its section on religion, the report says in part:

We remain an officially Christian country with our Head of State, Her Majesty the Queen, also Supreme Governor of the established Church in England, while at the 2011 Census, 59% of us described ourselves as Christian. But that figure had fallen significantly from 72% a decade earlier. And the Church of England has seen a steady decline in church attendance over the last half century, with the proportion of the population attending Sunday services now only one third of that in the 1960s.

At the same time there has been a shift away from mainstream Christian denominations and a growth in evangelical and Pentecostal churches, largely reflecting changes in ethnic diversity.

There has also been an increase in the variety of faiths being practiced. Fifty years ago, Judaism – at less than 1% of the population – was the largest non-Christian faith in the UK. Now it is the fourth largest non-Christian faith with 269,000 people identifying as Jewish in the 2011 Census behind Islam (2.8 million people), Hinduism (833,000), and Sikhism (432,000).

European Commission Meets With Religious Leaders

According to a European Commission press release, yesterday the Commission sponsored the 12th annual high-level meeting with religious leaders from across Europe to discuss Migration, Integration and European Values. European Commission First Vice-President Frans Timmermans who hosted the meeting said:

Religious leaders play a pivotal role to spur the integration and participation of all their members in Europe as full Europeans, no matter the place of their cradle, no matter their creed. Through these dialogues we identify those common fundamental values that bind us, instead of harping on the issues that divide us.

Article 17 of the Treaty of Lisbon calls for the European Union to maintain open, transparent and regular dialogue with churches and with philosophical and non-confessional organizations. The meeting included Catholic, Orthodox, Protestant, Mormon, Muslim, Jewish, and Hindu religious leaders. In June, the Commission held a similar conference with philosophical and non-confessional organizations. [Thanks to Law & Religion UK for the lead.]

Religious Worker's Challenge To Immigration Law Interpretation Dismissed On Jurisdictional Grounds

Singh v. Johnson, (SD IN, Aug. 17, 2016), is a suit in federal district court for declaratory relief and an injunction by an Indian citizen who is in the U.S. on an R-1 nonimmigrant religious worker visa working for a Sikh Gurdwara in Indiana. Plaintiff sought to adjust his status to become a lawful permanent resident.  USCIS denied his application for change of status because, it contended, his receipt of room and board, donations, and gifts from Sikh temples other than his employer amounted to unauthorized employment in the U.S. Plaintiff contends that this definition of unauthorized employment is inconsistent with law and violates his free exercise rights.  An Indiana federal district judge dismissed plaintiff's complaint for lack of jurisdiction, saying:

The immigration judge presiding over the Plaintiff’s removal proceeding has de novo review of the USCIS’s denial of the Plaintiff’s I-485 Application....  Thereafter, if the immigration judge’s decision is unfavorable to the Plaintiff, he may appeal to the Board of Immigration Appeals.... And, if the Board of Immigration Appeals affirms an immigration judge’s unfavorable decision, the Plaintiff may appeal to the Seventh Circuit the results of his removal proceeding and any constitutional claims or questions of law.

HHS Sued Over Allowing Catholic Agencies To Limit Health Services To Unaccompanied Immigrant Minors

The ACLU today filed suit in a California federal district court alleging that officials in the U.S. Department of Health and Human Services have violated the Establishment Clause in allowing the U.S. Conference of Catholic Bishops and its sub-grantees to impose religiously based restrictions on the use of taxpayer funds to aid unaccompanied immigrant minors.  The complaint (full text) in ACLU of Northern California v. Burwell, (ND CA, filed 6/24/2016) alleges in part:

1. There are currently thousands of unaccompanied immigrant minors ... in the legal custody of the federal government.... Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted ....; some have also been trafficked for labor or prostitution....

2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion.

3. To provide young people with these necessities, the government ... issues grants to private entities, including a number of religiously affiliated organizations.

4. ... Defendants authorize a few of these religiously affiliated organizations—such as the United States Conference of Catholic Bishops ... and its subgrantees across the country ... to refuse on religious grounds to provide information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped.

New York Times reports on the lawsuit.

Trump Reacts To Orlando Attack In Speech Focusing On Immigration

Yesterday Republican presumptive Presidential nominee Donald Trump delivered a controversial speech (full text) in reaction to the June 12 killing of 49 people at a night club in Orlando, Florida. Focusing on immigration, Trump said in part:

We cannot continue to allow thousands upon thousands of people to pour into our country, many of whom have the same thought process as this savage killer.

Many of the principles of Radical Islam are incompatible with Western values and institutions.

Radical Islam is anti-woman, anti-gay and anti-American.

I refuse to allow America to become a place where gay people, Christian people, and Jewish people, are the targets of persecution and intimidation by Radical Islamic preachers of hate and violence.

Here is part of the New York Times coverage:

Without distinguishing between mainstream Muslims and Islamist terrorists, Mr. Trump suggested that all Muslim immigrants posed potential threats to America’s security and called for a ban on migrants from any part of the world with “a proven history of terrorism” against the United States or its allies. He also insinuated that American Muslims were all but complicit in acts of domestic terrorism for failing to report attacks in advance, asserting without evidence that they had warnings of shootings like the one in Orlando.

Mr. Trump’s speech, delivered at St. Anselm College in Manchester, N.H., represented an extraordinary break from the longstanding rhetorical norms of American presidential nominees. But if his language more closely resembled a European nationalist’s than a mainstream Republican’s, he was wagering that voters are stirred more by their fears of Islamic terrorism than any concerns they may have about his flouting traditions of tolerance and respect for religious diversity.

Bill Would Prohibit Excluding Aliens' Admission To U.S. On Religious Grounds

Apparently in reaction to presumptive Republican presidential nominee Donald Trump's proposals on Muslim immigration, on May 12 Rep. Donald Beyer introduced into Congress H.R. 5207, the Freedom of Religion Act of 2016 (full text). The bill, which now has 103 co-sponsors (all Democrats), would amend the Immigration and Nationality Act by adding a section that provides:

Notwithstanding any other provision of the immigration laws, an alien may not be denied admission to the United States because of the alien’s religion or lack of religious beliefs.