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Hawaii has filed a lawsuit challenging President Donald Trump’s revised version of his Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” on four main grounds:
1. Hawaii claims the Order violates the prohibition against nationality-based discrimination in the Immigration and Nationality Act (INA).
This argument is based on 8 U.S.C. § 1152(a)(1)(A) of the INA, which prohibits discrimination on the basis of nationality. Hawaii claims that the EO violates this provision by prohibiting nationals of six countries from entry into the United States.
But this interpretation takes the section out of context. It just applies to the per country levels for the annual allocation of immigrant visas to aliens coming to the United States to live here permanently.
In the section titled “Numerical limitations on individual foreign states,” it states that “Except as specifically provided in paragraph (2) [family-sponsored and employment-based immigrants] and in sections 1101(a)(27) [special immigrant], 1151(b)(2)(A)(i) [aliens not subject to direct numerical limitations], and 1153 [allocation of immigrant visas] … no person shall … be discriminated against in the issuance of an immigrant visa because of the person's … nationality.”
Read more at
http://thehill.com/blogs/pundits-blo...l-ban-debunked
Published originally on The Hill
About the author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
And even if Iraq were in fact able to perform this impossible feat to get removed from the banned list, does that justifying barring approximately 100 million people from the other six 99 per cent Muslim countries based only on a presumption that their religion makes then a potential danger to the US?
Roger, did you read the revised Executive Order? Their presence on the banned list is not based only on a presumption that their religion makes then a potential danger to the US. It includes the following information about the banned countries:
(e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to al-Qa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.
https://www.whitehouse.gov/the-press...-united-states
Nolan Rappaport
And even if Iraq were in fact able to perform this impossible feat to get removed from the banned list, does that justifying barring approximately 100 million people from the other six 99 per cent Muslim countries based only on a presumption that their religion makes then a potential danger to the US?
Roger, did you read the revised Executive Order? Their presence on the banned list is not based only on a presumption that their religion makes then a potential danger to the US. It includes the following information about the banned countries:
(e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to al-Qa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.
https://www.whitehouse.gov/the-press...-united-states
Nolan Rappaport
He is only arguing that the court, as part of its fact finding, should ignore the mountain of evidence of bias and discrimination against Muslims based on statements Trump made before taking office as president. If the courts are forced to close their eyes to the reality behind certain actions of the other two branches of government based on such artificial distinctions, we might as well not have a judicial system.
Nolan is in effect arguing that the president has the power to deceive the courts and misrepresent the true reasons for a particular executive action, while forcing the courts to turn a blind eye to reality.
That is a recipe for dictatorship in America. Back in the dark days of the Chinese exclusion laws, or of the 1924 "national origins" racially discriminatory immigration quotas aimed against Jews, Catholics and most other immigrants who were not from white, Protestant, northern Europe, at least our politicians were more honest about their motives for discriminating against the targeted ethnic/religious groups.
Trump's administration is now trying to add lies about the motives for the ban onto the invidious constitutional violations that were the ban's obvious intent.
This would make Trump not only the nation's demagogue in chief, but also its dissembler in chief.
Having said the above, even if the courts were to rule out Trump's openly and consistently expressed hatred for Muslims in America and around the world during his campaign, there would still be overwhelming reasons for the court's finding of discriminatory intent against the Muslim religion based only on the Trump administration actions since he took office as president, as well as on the discriminatory impact of the ban against American Muslim citizens because of their religion, whether they originate from the banned countries or not.
Nolan is arguing, not only that the courts should turn a blind eye to the reality of religious discrimination behind the latest version of the Muslim ban order, but that it should accept the administration's alternative reality of a heightened danger to the United States coming from six countries whose citizens to date have never committed a single terrorist act in the United States that anyone has been able to identify.
With regard to refugees, the administration's justification for a worldwide ban is even less substantial and more fraudulent than in the case of the six 99 percent Muslim country bans.
It is based entirely on speculation and what another federal court has accurately called a "nightmare scenario".
Trump's only defense in the case of banning refugees is that the discrimination is not only intended against Muslims, but against all non-white immigrants.
That indeed may be the most accurate "defense" for the ban that Trump has available.
Roger Algase
Attorney at Law