Block The Ban

Americans United Says Trump’s Muslim Ban 3.0 Is Still Unconstitutional – And Still Un-American

Americans United and allies are working to ensure that the third time is not the charm for President Donald Trump’s Muslim ban.

AU joined Muslim Advocates and the law firm Covington and Burling LLP in early October to file Iranian Alliances Across Borders v. Trump – the first lawsuit to challenge Trump’s Muslim Ban 3.0. As this issue of Church & State went to press, a federal court in Maryland ruled in favor of Americans United and its allies and issued an order blocking implementation of Trump’s latest Muslim ban.

Just as the second Muslim ban was expiring on Sept. 24, Trump issued a presidential proclamation     indefinitely extending the ban on immigrants from the overwhelmingly Mus­­lim countries of Iran, Libya, Somalia, Syria and Yemen. It also barred most business and tourist visitors from those countries except for Somalia. Although Trump removed the Muslim-majority country of Sud­an from the list of banned countries, he replaced it with another Muslim-majority country, Chad, to the surprise of many. The proclamation also calls for “additional scrutiny” of travelers from Iraq.

There were two primary differences in the latest rendition of the Muslim ban. The first is that it is not temporary – the new ban has no end date and will continue indefinitely. The second is that two countries that don’t have predominantly Muslim citizens were added to the ban: Trump is restricting entry into the U.S. for North Koreans, as well as for Venezuelan government officials and their families.

AU and other critics have called the addition of North Korea and Venezuela a smokescreen intended to veil the Trump administration’s hostility toward Muslims. Hardly any North Koreans travel to the United States, and the ban affects only a very small pool of Venezuelans. As noted on AU’s “Wall of Separation” blog, “In short, it’s still only people from Muslim-majority countries who are being banned from the United States. The addition of North Korea and Venezuela – two countries that have recently been the targets of Trump’s wrath – are simply a distraction.”

“This is the third time that President Trump has tried to implement the Muslim ban, and it’s still designed to exclude people because of their religious beliefs. The only thing that’s really different here is that the Trump administration is now trying to make this appalling ban permanent,” said AU Legal Director Richard B. Katskee. “Religious freedom is about fairness. When we treat one group of people unfairly because of their religious beliefs, that’s a threat to the religious freedom of all Americans.”

The lawsuit maintains that the new Muslim ban is un-American and unconstitutional because it singles out people for disfavor because of their religion. Asserts the suit, “Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Vene­zuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.”

Muslim Ban 3.0 “violates the guarantees that the government will not establish, favor, discriminate against, denigrate, or condemn any religion; the guarantee of free speech; and the guarantee of equal protection of law,” the lawsuit continues. “It betrays our nation’s most central principles and forsakes our common heritage as a country founded in part on the principle of freedom from religious persecution.”

One of the plaintiffs in the case is Iranian Alliances Across Borders (IAAB), a nonprofit founded in 2003 by Iranian-American university students to serve the Iranian diaspora community. Also among the plaintiffs are six individuals, all of whom are U.S. citizens or lawful permanent residents with Iranian relatives who would be blocked from coming to the United States by Muslim Ban 3.0.

Trump’s “Proclamation penalizes the nationals of the targeted Muslim-majority countries … and it harms U.S. citizens and U.S. Lawful Permanent Residents with family or business ties to these countries – particularly those with bona fide relationships with current or potential applicants for immigrant- and non-immigrant visas to the United States from the countries affected by the Proclamation – as well as organizations of similarly situated individuals,” the lawsuit explains.

Several of the individual plaintiffs spoke of how Trump’s Muslim ban will harm them. To protect themselves from violence and retaliation, the individuals are identified by pseudonyms in the lawsuit.

A plaintiff identified as “Jane Doe No. 1” is an American citizen who fled religious persecution in Iran. She married her husband, an Iranian citizen, in 2016 and is temporarily living with him in the United Arab Emirates while waiting for his U.S. visa application to be processed.

She said they are “very worried” about their finances and the uncertain circumstances of where they will live: “We are eagerly awaiting completion of his immigrant visa process, so that we can breathe more easily and come to the United States, where we can settle freely and comfortably and feel like we really belong somewhere and can remain there in a permanent way.”

“Jane Doe No. 2” is an American of Iranian descent who was born in Maryland. She met her fiancé while traveling in Iran, and he just completed the interview for his U.S. visa in August.

“I understand that if his visa is not issued by Oct. 18, he will be banned from traveling to the United States. …This will mean that I have to choose between my home and my country here in Maryland and the love of my life, the man I want to marry. …It will be very difficult for me to leave my job and the only home I have known. This will tear us apart, and we are already devastated just thinking about it.”

“Jane Doe No. 5” is a 79-year-old woman living in Maryland, an Iranian national who has lawful permanent resident status in the U.S. Because she relies on a wheelchair and her 90-year-old husband also has significant health issues, she applied for a U.S. visa for her son in Iran.

“It is very difficult for my other son to take care of us by himself, and very hard for us to get around or meet our own needs. We desperately need my other son to be here also. …I am afraid that I will never be able to see my son. I am afraid that he will not be able to come and be with his elderly parents. This causes me great pain and suffering on a daily basis.”

Mana Kharrazi, executive director of IAAB, noted, “It is paramount that we stop the latest ban from taking effect. Graduations, weddings, births –virtually every significant moment for our families will be lost because of this ban. This administration attempts to strip us of our humanity and force us to be invisible. … Previous attempts to ban our communities have already emboldened hate and violence. What then will become of us and the future of our country if this ban actually becomes law?”

After filing IAAB v. Trump on Oct. 2, AU and allies on Oct. 6 filed a motion requesting a preliminary injunction that would freeze Muslim Ban 3.0 and stop it from going into effect until the case is decided. The judge presiding over the case, U.S. District Court Judge Theodore D. Chuang in Maryland, granted that request early in the morning of Oct. 18.

In the same court, the American Civil Liberties Union and allied immigration organizations have amended an earlier lawsuit, Trump v. International Refugee Assistance Project, to encompass Muslim Ban 3.0 and also moved for a preliminary injunction. The challengers in Trump v. Hawaii did the same and also secured a freeze on the ban.

Trump v. IRAP and Trump v. Hawaii both challenged Muslim Ban 2.0 and were scheduled to be argued before the U.S. Supreme Court on Oct. 10. In response to Trump’s proclamation announcing Muslim Ban 3.0, the high court canceled the argument and asked the parties to weigh in on whether the cases should proceed. Hawaii and IRAP argued for the cases to be heard; the government argued they should be dismissed as moot.

On Oct. 10 the high court dismissed Trump v. IRAP because “the appeal no longer presents a ‘live case or controversy.’” Court watchers anticipated the justices would similarly dismiss Trump v. Hawaii once the temporary refugee ban established in Muslim Ban 2.0 expired on Oct. 24. The justices noted their order to dismiss Trump v. IRAP expressed “no view on the merits” of the case.

Despite the Supreme Court’s dismissal, the justices are expected to see the Muslim ban on their docket again soon. Amy Howe of SCOTUSblog noted, “They are probably not done with the issues at the heart of both cases – whether the Trump administration’s restrictions on entry into the United States violate the Constitution or exceed the president’s authority. Those questions are likely to return to the court soon, perhaps even this term.”

AU will remain involved.

“The eyes of history never look kindly on those who choose to side with discrimination,” said AU’s Kats­kee. “Trump’s Muslim Ban 3.0, just like the previous versions, is both unfair and rooted in discrimination. It subjects people to ill-treatment and second-class status simply because of their religious tradition. That’s profoundly un-American, and we’re determined to see that this ban never takes effect.”