Federal Court Blocks Key Components in Second Executive Order

On Wednesday, March 15, a federal judge in Hawaii temporarily blocked implementation and enforcement of the “travel ban” and “refugee ban” prescribed by President Trump’s second Executive Order. Last week, the State of Hawaii and Ismail Elshikh, Ph.D. of Hawaii sought a nationwide temporary restraining order against these portions of the amended Executive Order by claiming, among other things, a violation of the Establishment Clause, which prevents governmental preference of one religion over another. 

As you may recall, Section 2 of the new Executive Order suspended nationals of Iran, Libya, Somalia, Yemen, Sudan, and Syria from entering the U.S. for a period of 90 days if these nationals were outside the U.S. after March 16 and did not hold valid visas. Section 6 of the Executive Order suspended the U.S. Refugee Admissions Program for 120 days. The suspension applied both to travel into the U.S. and to decisions on applications for refugee status for the same period.

As required by law, the judge first concluded that the State of Hawaii and Dr. Elshikh had constitutional standing to bring their motion for the Temporary Restraining Order (TRO). The State of Hawaii successfully established that it would face irreparable harm by way of decreased tourism and financial and cultural loss to its state-funded university system due to the travel ban. Further, Dr. Elshikh, the Iman of Oahu’s only Mosque, successfully demonstrated irreparable harm by establishing that the Executive Order bespeaks “hostility” to the Mosque and the Islam faith and that discrimination would occur to Dr. Elshikh, his family and his community as a result of the measure.

In issuing the TRO, Judge Derrick Watson stated that “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.” Judge Watson reached this conclusion by analyzing the president’s previous statements about a “Muslim ban” and the link that politician Rudy Giuliani established between these statements and the Executive Order.

Judge Watson also denied the government’s claim that the second Executive Order was not discriminatory because the ban applied to all individuals of the specified nations and not just its Muslim inhabitants:

“It is undisputed, using the primary source upon which the government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the government does, that it does not.”

Judge Watson ultimately concluded that despite the Executive Order’s stated purpose of protecting our national security interests, this purpose is “secondary to a religious objective” of temporarily suspending the entry of Muslims. In the end, the judge did confirm that the Administration’s past conduct need not “forever taint” any future effort to address the security concerns of the nation. Before bringing another Executive Order, however, the Administration will need to show that there have been “genuine changes in constitutionally significant conditions.”

Thus, at this time, the second Executive Order is not in effect and all travel can commence as usual. Berardi Immigration Law will continue to keep you posted on this matter.

If you have questions on this or any other U.S. immigration matter, please contact our office to schedule a consultation with one of our attorneys today!

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