This Ban Can't Stand

Joining With Allies, Americans United Is Challenging Trump’s ‘Muslim Ban 2.0’ In Court

When a pair of Muslim Yem­eni parents were granted asylum in the United States, they faced obstacles while attempting to get visas for two of their six children who are stranded overseas and facing the danger of possibly returning to war-torn Yemen.

It’s been more than 800 days since that family has seen their children, and they constantly worry about their safety.

Separated families, children in danger and the continuing threat of war and terrorism continue plaguing many fleeing families worldwide, especially within war-torn Muslim-majority countries like Yemen and Syria.

Instead of helping, current U.S. policy makes things worse: President Donald J. Trump’s revised Muslim ban, which temporarily halts immigration from six Muslim-majority countries, creates a roadblock for families like this from finding a safe haven in the U.S.

That’s among the reasons why on March 24, Americans United joined with civil rights organizations Muslim Advocates and the Southern Poverty Law Center (SPLC) and the law firm Arnold & Porter Kaye Scholer in filing the case, UMAA v. Trump, in the U.S. District Court in Washington, D.C., to challenge Trump’s Muslim ban.

“This lawsuit proves that President Trump’s Muslim ban isn’t just unconstitutional, it’s also cruel. It divides families and keeps children from their parents, for no reason other than bias and prejudice against members of the Muslim faith,” AU Executive Director Barry W. Lynn said.

The lawsuit was filed on behalf of the Yemeni family and the Universal Muslim Association of America (UMAA), a nonprofit Shi’a Muslim organization that often hosts religious scholars from Iran, Iraq and Syria, which have a diverse Shi’a Muslim population. Iran and Syria remain in Trump’s second Muslim ban, while Iraq, initially included in the first Muslim ban, was removed.      

For UMAA, restricting the advancement of global scholars not only hurts the scholars, but it harms the general American Shi’a Muslim community, who rely on visiting scholars for educational services and worship.

“As a consequence, the Replacement Executive Order restricts American Shi’a Muslims’ access to many of the learned figures of their faith, and it harms UMAA’s ability to attract paying attendees to its events,” the lawsuit complaint reads.       

UMAA recently invited a prominent Shi’a scholar to speak at a February event that had been heavily publicized since 2016. The group sold almost 2,200 tickets, only to have their speaker get his already-granted visa revoked due to the first Muslim ban. Trump’s second ban continues to significantly impact Shi’a scholars from traveling to the United States.

To many Muslims already in the U.S. like the Yemeni plaintiffs, the Muslim ban is causing personal suffering. Since some UMAA members come from Iran, Iraq and Syria and are living in the U.S. on single-entry visas, they are prevented from reuniting with their families or bringing them to the U.S. as immigrants or visitors.

“Regardless of whether UMAA’s individual members or their relatives abroad may be entitled to case-by-case waivers under the Replacement Executive Order, it still impermissibly subjects them to disparate treatment and additional procedural hurdles on the basis of their national origin or religion,” the lawsuit asserts.

 On March 30, a federal judge in Hawaii, acting in a separate case, granted an indefinite injunction to keep the second ban on hold nationwide until current lawsuits challenging the ban complete their course.

Shortly after AU’s lawsuit was filed, AU Legal Fellow Andrew Nellis appeared on Facebook Live, a video streaming service on the social media site, to discuss the legal action. Nellis noted that the lawsuit highlights the dehumanizing nature of the Muslim ban, thus strengthening the nationwide fight against it.

“[The lawsuit] tells additional stories that aren’t necessarily represented in the other cases… the stories of the plaintiffs,” Nellis explained. “It’s also useful to have as many cases as possible around the country to ensure that the ban doesn’t come back in place and harm any of the plaintiffs, either in this case or in the other cases.”

Nellis noted that the second Muslim ban has sharp similarities to the first Muslim ban, which the Trump administration withdrew after federal courts blocked it from being implemented.

The revised ban took Iraq off the list of seven countries originally banned, which also included Syria, Iran, Yemen, Somalia, Libya and Sudan, but then ended up making “a bunch of onerous restrictions” for Iraqis who were trying to come to the U.S., Nellis pointed out.

Additionally, the second ban continues to bar all refugees from entering the United States; it no longer singles out Syrian refugees. It also does not restrict entrance for people who are permanent U.S. residents or restrict travel for those already in the U.S. AU filed legal briefs in multiple cases challenging the unconstitutional first and second executive orders and will continue to do so.

“The administration has made it clear that they’re trying to implement the same policy in the way that they think will sneak through the courts,” Nellis said. “It’s still excluding people who are in these six or seven countries who are trying to come to the United States.”

The ultimate goal of the lawsuit is to permanently shut down the Muslim ban because it violates provisions of the First Amendment, which prohibits the government from disfavoring one religion over others.

“We’re seeking that [the] ban on the countries be overturned,” Nellis said, adding that AU wants to ensure that the Yemeni family that AU is representing can be reunited with their children and UMAA’s members can meet with religious scholars from overseas.

But there’s a larger goal, he said. AU, Nellis added, wants to make certain “that all individuals from those countries are able to travel to the United States with a visa…as they’ve done before.”

In the lawsuit, AU and allies argue that statements from then-presidential candidate Trump, as well as statements from current Trump administration advisors and staff, reveal religious discrimination as the primary motive behind his executive order bans.

“During his Presidential Campaign, then-Candidate Trump repeatedly condemned what he calls ‘radical Islam,’ linking Islam to terrorism and calling for a ‘total and complete shutdown of Muslims entering the United States,” the lawsuit notes. “Despite the Administration’s efforts to construct a ‘national security’ justification for the order, a litany of statements from the president and his surrogates illustrate the Trump Administration’s animus toward Muslims and indicate that such a policy can never be ‘legal.’”

 Trump, his administration and his advisors indeed didn’t shy away from anti-Muslim comments. On Jan. 28, former New York mayor Rudolph Giuliani said in a Fox News interview that Trump had asked him for advice on how to implement a Muslim ban without running into legal trouble.

“When [Trump] first announced it, he said, ‘Muslim ban,’” Giuliani said. “He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”

In a March 10, 2016, interview with CNN, Trump told Anderson Cooper that he thinks “Islam hates us” and that it’s “hard” to tell whether hate comes from within the religion.

“We can’t allow people coming into this country who have this hatred of the United States,” Trump said.

This sampling of anti-Muslim sentiment, alongside many similar comments, turned out to hurt Trump and his administrations in various court rulings.

A federal judge, ruling in a case from Maryland, granted a nationwide injunction against the Muslim ban on March 16. U.S. District Judge Theo­dore D. Chuang said he took Trump’s anti-Muslim statements into account when ruling.

“[T]he history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban,” Chuang noted.

And in Hawaii’s earlier ruling on March 15 that issued a nationwide temporary restraining order against the ban, U.S. District Judge Derrick K. Watson’s written decision mentioned numerous Islamophobic comments from Trump and his surrogates, which played a factor in his conclusion that the primary motivation for the ban was religious discrimination.

Watson’s decision quoted White House Senior Policy Advisor Stephen Miller calling the revisions in the second Muslim ban “mostly minor technical differences” in a Feb. 22 Fox News interview.

“[I]t 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 percent to 99.8 percent. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam,” Watson wrote.

That’s why revisions of the ban and Trump’s shifting his rhetoric from calling it a religious ban to calling it a ban on “territories” shouldn’t distract the public and courts from Trump’s well-documented intentions of banning or restricting Muslims from entering the U.S., Naomi Tsu, SPLC deputy legal director, argues.

“No one should be fooled by the latest travel ban. President Trump is still trying to deliver on his campaign promise of a Muslim ban.” Tsu said. “As this lawsuit makes clear, it’s wreaking havoc in the Muslim community by separating families and preventing others from practicing their religion. The Muslim ban is unconstitutional and it must end.”

Trump doubled down during a March 15 rally in Nashville, the same day a Hawaii federal judge temporarily blocked his second Muslim ban. Trump told a crowd that the ruling was “terrible” and said he “ought to go back to the first one and go all the way” because the second order was a “watered-down version of the first one.”

 “We’re going to fight this terrible ruling,” Trump said. “We’re going to take our case as far as it needs to go, including all the way up to the Sup­reme Court.”

 AU, SPLC and Muslim Advocates are ready to fight the Trump administration in court to the end, too.

The groups assert that the revised Muslim ban “differentiates among religions because it singles out for unfavorable treatment countries that are almost entirely Muslim.”

 During a campaign speech on June 13, 2016, Trump reiterated that his plans for a Muslim ban were to protect the U.S. from terrorism.

But AU and allies note that there’s no justification for the Trump administration’s continuing efforts to restrict and ban immigration from Muslim-majority countries, and a recent Department of Homeland Security (DHS) report reinforces that.

The DHS report, “Citizenship Like­ly an Unreliable Indicator of Terrorist Threat to the United States,” was publicized by the Associated Press on Feb. 24. The groups argue that the report’s findings that citizens of countries banned in the first and second executive order are “rarely” connected to terrorism in the U.S. invalidate Trump’s claim that this ban is about national security.

“The order purports to ‘protect’ the nation from ‘foreign terrorist[s].’ Instead, it ushers in a sweeping ban of most nationals of six Muslim-majority countries from entering the United States,” the lawsuit states. “The president’s own security agencies have repudiated the broad stereotypes and crude generalizations underlying the order’s putative  jus­­­ti­fication and instead shown that country of citizenship is no reliable proxy for terrorist threat.”

As Muslim Advocates’ legal director Johnathan Smith emphasized, the bottom line is that the Muslim ban is simply religious discrimination, and that’s why AU and its allies are fighting it.

“The Constitution couldn’t be more clear: Americans have the right to worship as they choose and to keep their families intact,” Smith said.