Immigration Law

In response to Hawaii lawsuit, DOJ argues that revision of Trump travel ban removes legal problems

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Department of Justice

President Donald Trump’s new executive order limiting travel to the United States doesn’t have the legal problems courts have found with the first order, the Department of Justice argued today.

As the Washington Post reported Monday, the Department is arguing that the state of Hawaii is not entitled to a temporary restraining order against the ban. Hawaii challenged the revised order last week, likely becoming the first state to do so.

The new order forbids visas from being issued to citizens of six majority-Muslim countries for 90 days; Iraq was removed from the list on the original travel ban. Like the original, it suspends all refugee admissions for 120 days and cuts down the total number of refugees admitted to the United States to 50,000, less than half of the original 110,000. However, it removes a provision that exempted religious minorities.

In opposition to the request for a temporary restraining order, the DOJ argued (PDF) that Hawaii presented “no justiciable claim at all.” Hawaii’s argument that the ban would hurt its tourism industry and state universities—an argument made in other travel ban cases—is “mere speculation,” the motion says. Plaintiff Ismail Elshikh, a Hawaii resident who argued that the ban would affect plans for his Syrian mother-in-law to visit his family, has no standing because his mother-in-law has not yet been denied a visa, the motion says.

And changes to the executive order undermine Hawaii’s arguments, the motion says. Hawaii had argued that multiple public statements by the president suggested religious animus against Muslims in violation of the First Amendment, but the DOJ argued that the text and purpose of the order itself are “religion-neutral.” Other changes to the order show that no emergency relief is required, the motion says, because waivers are available. If a waiver is denied, it says, affected parties should bring challenges to the order as applied.

A hearing in the Hawaii case is scheduled for Wednesday.

Across the nation in Wisconsin, the revised travel ban suffered a setback in a case involving a family of Syrian refugees. A federal judge there enjoined the government from enforcing the ban against a woman and child from Syria, who had been cleared to join their husband and father in Wisconsin prior to the ban.

A group of other states has joined the state of Washington’s litigation against the travel ban, which is back in Seattle federal court after a closely watched trip to the San Francisco-based 9th U.S. Circuit Court of Appeals. States joining that effort include Maryland, New York, Oregon, California, Massachusetts and Minnesota, the Los Angeles Times reported. Those states filed a second amended complaint Monday, arguing that the revised ban will still drastically affect state residents, institutions and businesses. They asked Seattle federal judge James Robart to apply his prior order suspending enforcement of the first ban to the second ban; Robart gave the federal government until Tuesday to respond, Reuters reported.

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