March 17, 2017
Author(s): Jason Gerrol
On March 15, 2017, the United States District Court for the District of Hawaii issued a national temporary restraining order blocking the implementation and enforcement of the March 6, 2017 executive order suspending entry to the United States of nationals from six countries.
NOTE: A revised travel ban has been issued since the publication of this alert. Please click here to read about the latest version of Trump’s travel ban.
On March 6, 2017, President Trump signed an immigration executive order (EO) that was to go into effect March 16, 2017 (effective date). The EO would suspend entry to the United States for nationals of six designated countries (Sudan, Syria, Iran, Libya, Somalia and Yemen) for a period of 90 days from the effective date of the order, and suspend additional refugee admissions for a period of 120 days from the effective date of the order. A previous client alert summarizing relevant portions of the March 6, 2017 EO can be found here.
However, on March 15, 2017, a Hawaii federal judge granted a nationwide temporary restraining order (TRO) blocking the implementation and enforcement of Section 2 of the EO (the 90 day travel suspension) and Section 6 of the EO (the 120 day suspension of refugee admissions). While the implementation and enforcement of the EO has been temporarily blocked, the Trump administration has already indicated its intentions to fight the TRO, and impacted travelers should seek the guidance of an immigration professional prior to planning international travel.
There are two Plaintiffs in this case: the state of Hawaii, and Mr. Ismail Elshikh. Hawaii was found to have standing due to concerns that its universities will suffer monetary damages and intangible harms, and that the state’s economy will suffer due to a decline in tourism as a result of the EO. Similarly, Mr. Elshikh, a U.S. citizen and leader in Hawaii’s Islamic community, was found to have standing as a result of not being able to see his mother-in-law, a Syrian national who has been unable to secure her immigrant visa following the initial January 27, 2017 EO.
While the Plaintiffs asserted several causes of action, including violations of the Fifth Amendment’s Due Process Clause and a violation of the Immigration and Nationality Act’s prohibition against discrimination on the basis of nationality, the court declined to express views on those claims and only addressed the Plaintiffs’ first claim: that the EO is a violation of the Establishment Clause of the First Amendment.
Judge Derrick K. Watson found that the plaintiffs had established a likelihood of success on the merits of their claim that the EO violates the Establishment Clause of the First Amendment, which protects against religious discrimination. Judge Watson reviewed prior comments made by President Trump, and others, regarding a “Muslim ban,” and found the record “includes significant and unrebutted evidence of religious animus driving the promulgation of the [original January 27, 2017] [e]xecutive [o]rder and its related predecessor.” Judge Watson proceeded to find that the stated secular purpose of the EO (i.e., national security) is secondary to a religious objective of temporarily suspending the entry of Muslims into the United States.
In addition to the TRO issued by the Hawaii District Court, a second partial injunction against the EO has been issued by a federal judge in Maryland. The Trump administration has already indicated its intentions to seek further court review of the Hawaii District Court ruling, and that review will likely proceed to the Ninth Circuit Court of Appeals and, possibly, the U.S. Supreme Court. As litigation in this matter continues, impacted individuals should be sure to consult with an immigration professional prior to planning any international travel.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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