Blog
Published on November 8, 2017
As the Trump Administration attempts yet again to block Muslim refugees from entering this country, the world’s most vulnerable continue to wait in legal limbo. As soon as this week, a federal court could block the latest attempts, with worldwide implications for refugees and their ability to finally enter into the United States.
Last Thursday, I witnessed the first court challenge to the refugee component of the president’s latest Muslim Ban. It started with oral arguments over the motion for a preliminary injunction in the case of Pars Equality v. Trump. Lawyers for the plaintiffs asked the federal court to halt implementation of both travel restrictions on Muslim-majority countries and the latest refugee ban because of the irreparable harm it causes to those seeking refuge in the United States. The plaintiffs included Iranian-American organizations, immigrants seeking family reunification, and refugees.
The first two iterations of the Muslim Ban included travel restrictions on citizens of many Muslim majority countries as well as suspending refugee resettlement. The administration issued Muslim Ban 3.0, however, in two stages.
First, on September 24, President Trump issued a presidential proclamation, placing indefinite travel restrictions on citizens from six Muslim majority countries—Chad, Iran, Libya, Somalia, Syria, and Yemen—as well as restrictions on North Korea and some Venezuelan government officials.
Second, on October 24, President Trump signed an executive order and government agencies issued a memorandum that together imposed another 90-day suspension of refugee resettlement for citizens of eleven countries, of which nine are Muslim majority. The executive order also ended the follow-to-join process that allowed for family reunification for refugees and added additional biographical requirements that will further delay and limit resettlement.
As you may remember, in mid-October federal courts in Hawaii and Maryland blocked implementation of most of the presidential proclamation before the travel restrictions took effect. Both of these decisions came before the newest refugee ban was issued later that month, meaning that those rulings did not block the 90-day suspension from going into effect. Pars Equality v. Trump will determine whether the administration can continue to enforce its newest ban on refugees.
The Lawyers’ Committee for Civil Rights Under Law along with two law firms—including Arnold & Porter Kaye Scholer, LLP, one of Human Rights First’s pro bono law firm partners—represent the plaintiffs. They argued that Muslim Ban 3.0 is just the administration’s latest attempt to implement President Trump’s anti-Islam agenda. They also asserted that the September presidential proclamation and October refugee ban violate: 1) the Establishment Clause of the First Amendment; 2) the Equal Protection Clause of the Fifth Amendment on both religious and national origin grounds; 3) the Due Process Clause of the Fifth Amendment; and 4) the Administrative Procedures Act.
Additionally, attorneys argued that their clients meet the demonstrated harm requirement necessary for a preliminary injunction prior to a full merits hearing. They highlighted the fact that with a historically low refugee cap of 45,000 in fiscal year 2018, a delay may mean refugees from affected countries do not make it into the United States before the cap is reached. The 90-day suspension will likely result in fewer Muslim refugees. In this manner, irreparable harm is a direct result of the government’s action under Muslim Ban 3.0, and court action could redress the harm.
Attorneys for the government countered by arguing that the plaintiffs failed to show irreparable harm and had not demonstrated racial or religious animus by the Departments of Homeland Security and State, which authored the October refugee memorandum. They also highlighted the fact that the government has complied fully with the two previous federal court orders blocking enforcement of much of the September proclamation. As a result, they argued, plaintiffs are not experiencing irreparable harm from the travel restrictions. They also argued that the new 90-day suspension does not affect the three refugee plaintiffs, as none were in the right stage in the vetting process.
The court requested that plaintiffs submit an amended complaint, which they then filed on Friday. It is possible that the judge could release a decision regarding whether to enjoin enforcement of the refugee ban as early as this week.
