Virginia plaintiffs denied injunction against Trump’s second travel ban

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By Joy Waltemath

By Lorene D. Park, J.D.

Detailing substantial differences between President Trump’s first Executive Order and his second Order suspending the entry into the U.S. of individuals from certain Muslim countries, and finding that the plaintiffs failed to show a “clear likelihood of success” on their challenges under the Establishment Clause and Equal Protection Clause, or under the Immigration and Nationality Act, a federal district court in Virginia denied their motion for a temporary restraining order and/or preliminary injunction. Among other reasons, the court explained that unlike EO-1, EO-2 is facially neutral and was not accompanied by contemporaneous statements indicating a discriminatory intent (Sarsour v. Trump, March 24, 2017, Trenga, A.).

Executive Order No. 1. On January 26, President Trump signed Executive Order No. 13,769, which suspended for 90 days entry into the U.S. from the predominantly Muslim countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It also suspended the Refugee Admissions Program for 120 days and indefinitely suspended Syrian refugees. Agencies were to prioritize based on “religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” A federal court in Washington enjoined enforcement of certain provisions and the Ninth Circuit refused to stay that order. Meanwhile, the district court in Virginia enjoined enforcement of section 3(c) as to Virginia residents.

Executive Order No. 2. The President then issued EO No. 13,780, which has the same stated purpose as EO-1 but has substantial differences: “EO-2 removes Iraq from the list of designated countries whose nationals are covered by the Order, eliminates the indefinite suspension of all refugees from Syria, exempts otherwise covered persons who are located in the United States or who had appropriate travel documents as of the date on which EO-1 was issued, provides a list of categories where otherwise-covered persons qualify for consideration of a waiver, and removes any religious-based preferences for waivers.” EO-2 also had substantially more justification for its national security concerns, including why each particular designated country posed danger.

Sections 2 and 6 blocked. Sections 2 and 6 of EO-2 has been challenged in Hawaii, Maryland, New York, and Washington (See New immigration order embattled under earlier lawsuits, Employment Law Daily, March 14, 2017). Section 2(c) suspends the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, subject to the limitations, exemptions, and waivers. Section 6 suspends decisions on applications for refugee status worldwide for 120 days, subject to waivers. On March 15, a federal court in Hawaii granted a temporary restraining order against the enforcement of sections 2 and 6, finding a strong likelihood of success on the merits of the Establishment Clause claim. That same day, a district court in Maryland granted a nationwide preliminary injunction against the enforcement of section 2(c). The rest of EO-2 remains in force.

The Virginia plaintiffs. With this backdrop, the court here addressed the plaintiffs’ motion to enjoin EO-2 entirely. The plaintiffs, Muslims who live in various U.S. locations, claim they are harmed by EO-2 in various ways, including a stigma against Muslims. They claim that starting with the first “Muslim Ban,” the defendants promoted views that condemn their religion and marginalize or disfavor Muslims by claiming they are dangerous and disposed to terrorism. They also claimed other injuries based on their relationships. For example, three “are no longer able to bring their family members from Syria and Iran to visit.” Several are lawful residents who filed marriage petitions and claimed EO-2 means a “more onerous application process” for their wives to obtain waivers from the ban. Two are here on F-1 student visas and claim their ability to travel outside the U.S. is hampered and EO-1 imposes a hardship because they will be unable to see family on school breaks.

President’s authority. The plaintiffs asserted that EO-2 exceeded the President’s statutory or constitutional authority and that it has the unconstitutional effect of imposing upon them a stigma based on their religion. To the court, the question was not whether EO-2 was wise, necessary, or politically motivated. Instead, the issue on which the plaintiffs had to show a clear likelihood of success was whether EO-2 falls within the President’s statutory authority or whether he exercised that authority in violation of the constitution.

Not clear that EO-2 violates INA. According to the plaintiffs, section 2(c) bars entry into the U.S. based on nationality and so violates the Immigration and Nationality Act (INA). They argue that the President’s authority under Section 1182(f) to bar entry of “any aliens or class of aliens” and his authority to limit the entry of aliens under Section 1185(a) is restricted by Section 1152, which states: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence.” To the court, though, the plaintiffs did not show they would likely succeed on the merits of this claim, even assuming that EO-2 discriminates based on nationality.

At a minimum, explained the court, Section 1152’s non-discrimination restrictions apply to immigrant visas, not non-immigrant visas or entry under Section 1182(f). The court also had “substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s authority under Sections 1182(f) or 1185(a)” to bar physical entry at the border. Sections 1182(f) and 1152(a) deal with different aspects of the immigration process. Also, Section 1201(h) states that nothing in the INA shall entitle any alien with a visa to be admitted if, upon arrival, “he is found to be inadmissible” under any provision of law. This made clear that the process of issuing a visa is distinct from the process of actually allowing entry into the U.S.

Not clear that EO-2 violates Establishment Clause. Nor did plaintiffs make a “clear showing” of likely success in proving EO-2 violates the Establishment Clause because it disfavors Islam. The text of the Order makes no mention of religion as a criterion and the plaintiffs concede EO-2 is facially neutral. While they claimed the President’s continued anti-Muslim statements show it is nothing more than subterfuge for religious discrimination, the court was not convinced. Unlike EO-1, this was not a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. EO-2 is textually neutral and the President’s recent statements (e.g., that EO-2 is a “watered-down version” of EO-1) didn’t clearly disqualify him from exercising his authority. The court refused to find that the President’s past statements should “continue to fatally infect what is facially a lawful exercise of presidential authority.”

Equal Protection challenge not clear winner either. Again noting the differences between EO-1 and EO-2, and finding the President’s recent statements did not eliminate those differences, the court held that the plaintiffs did not clearly show likely success on their Equal Protection Clause challenge. While it was undisputed the countries affected are overwhelmingly Muslim, EO-2 is facially neutral and had a rational national security basis. Each designated country has “heightened risks,” is a state sponsor of terrorism, has been compromised by terrorist groups, or contains active combat zones. The President saw conditions that diminish a foreign government’s willingness or ability to share important information on travelers and saw the “significant presence” of terrorist organizations. Such judgments are “committed to the political branches—not to the courts.” Moreover, EO-2 contained limitations, exemptions, and waivers that undercut an inference that its purpose was discrimination rather than national security.

Other factors for injunction. Noting that the “loss of First Amendment rights, for even minimal periods of time, unquestionably constitutes irreparable injury,” the court refused to deny an injunction based on a lack of irreparable harm. However, in balancing the equities, it found that the plaintiffs’ alleged harms were speculative or already suffered independently of EO-2. For example, applications for spouse visas are being reviewed in “substantially the same way” as before EO-2. Indeed, one plaintiff was advised that his marriage petition was approved and his wife’s visa application is pending. And it was pure speculation to assume the plaintiffs here on student visas would have their ability to visit family restricted. Weighed against these abstract hardships, “the Government’s interest in combating terrorism is an urgent objective of the highest order.” In sum, the plaintiffs did not show that the balance of equities tipped in their favor nor that the public interest favored immediate relief.

Source:: Virginia plaintiffs denied injunction against Trump’s second travel ban


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