March 13, 2017
There’s a race going on for states to file or join new lawsuits against President Trump’s second executive order temporarily halting entry into the U.S. for some people from a few terror-plagued countries. The new actions promise to be rehashes of the states’ earlier suits against Trump’s original order. Washington State, for example, which managed to stop the first order, has gone so far as to argue the new order and the now-rescinded original measure are identical, and has asked a judge to simply apply his emergency stop to the new order as if nothing has changed.
But the first state to file suit against the new order, Hawaii, has taken a new tack from the suit it filed on Feb. 3 against Trump’s original order. The new Hawaii suit, which will come before a federal judge on March 15, relies not only on claims of economic damages to the state resulting from the Trump order but also on claims of damages to Hawaii Muslims’ feelings and perceptions of the world.
The original Hawaii suit was simply the state versus the president and his administration. The new suit adds a new plaintiff, a man named Ismail Elshikh, who is identified as “an American citizen of Egyptian descent” who has lived in Hawaii for more than a decade and is now imam of the Muslim Association of Hawaii.
The Trump order “inflicts a grave injury” on Elshikh and other Muslims in Hawaii, the suit says, by subjecting them to “discrimination and second-class treatment.”
“The order denies them their right to associate with family members overseas,” the lawsuit alleges, and forces Elshikh and other Hawaii Muslims “to live in a country and in a state where there is the perception that the government has established a disfavored religion.”
Elshikh’s particular problem is this: His wife, the suit says, is an American citizen “of Syrian descent and is also a resident of Hawaii.” She and Elshikh, who has a Ph.D. in Islamic Studies from an Egyptian university, have five children, all of whom, according to the suit, are American citizens and residents of Hawaii.
Mrs. Elshikh’s mother, Ismail Elshikh’s mother-in-law, is “a Syrian national, living in Syria.” According to the suit, she wants to come to the United States. “Elshikh’s mother-in-law last visited the family in 2005, when she stayed for one month,” the lawsuit says. “She has not met two of Dr. Elshikh’s children, and only Dr. Elshikh’s oldest child remembers meeting her grandmother.”
(I would offer more details than are in the suit, but when I called Elshikh, he declined to comment, referring me instead to Hakim Ouasanfi, chair of the Muslim Association of Hawaii, who could discuss some of the issues in the case but not the particulars of Elshikh’s family situation. The private lawyers working on the suit, including former Obama administration acting Solicitor General Neal Katyal, referred me to a state of Hawaii attorney who did not respond to an email inquiry.)
The suit says that in September 2015, Elshikh’s wife filed an I-130 petition on behalf of her mother in Syria. United States Citizen and Immigration Services describes the I-130 as a form “for citizen or lawful permanent resident of the United States to establish the relationship to certain alien relatives who wish to immigrate to the United States.
The mother-in-law’s I-130 petition was approved in February 2016, according to the suit, but so far, the suit says, “Elshikh’s mother-in-law does not currently hold a visa to enter the United States.”
Eleven of the 12 months during which Elshikh’s mother-in-law’s I-130 petition was approved but she was not granted a visa occurred during the Obama administration, which boasted of the thorough, time-consuming, multiyear vetting process it applied to Syrians attempting to come to the United States. Elshikh did not sue the government during that time. After Trump declared a 90-day moratorium on visas, Elshikh went to court.
The Elshikh family, according to the suit, is “devastated” by Trump’s temporary order, which the suit claims will prevent Elshikh’s mother-in-law “from obtaining a visa to visit or reunite with her family in Hawaii.” From the suit:
On January 31, 2017 — after the first Executive Order was put in place — Dr. Elshikh was notified by an individual from the National Visa Center that his mother-in-law’s application for an immigrant visa had been put on hold. Then, on March 2, 2017 — after the first Executive Order was enjoined — Dr. Elshikh and his family were notified by the National Visa Center that his mother-in-law’s visa application had progressed to the next stage of the process and that her interview would be scheduled at an embassy overseas. Under the new Executive Order, however, Dr. Elshikh fears that his mother-in-law will, once again, be unable to “enter” the country under Section 2(c) of the Executive Order.
The National Visa Center is part of the State Department. According to the department’s website, the Center processes visa petitions once those petitions have been approved by U.S. Citizenship and Immigration Services. “Lengthy wait times are involved for processing to begin,” the site warns.
The suit says that Elshikh’s children, who were apparently not harmed by the Obama administration’s (and Congress’s) action to make it difficult and time-consuming for Syrians to come to the U.S., are “deeply affected” by Trump’s executive order. “It conveys to them a message that their own country would discriminate against individuals who share their ethnicity, including members of their own family, and who hold the same religious beliefs.”
The suit says Muslims in Hawaii “feel that the new executive order targets Muslim citizens because of their religious views and national origin” and as a result Elshikh “believes that, as a result of the new executive order, he and members of the mosque will not be able to associate as freely with those of other faiths.”
Elshikh, according to the suit, “feels that, as a result of the new executive order, there is now a favored and disfavored religion in Hawaii and the United States, i.e., that a religion has been established.” The suit does not say what religion has been established by the Trump order. Members of Elshikh’s mosque, the suit says, live “in forced separation from family and friends [in the countries included in the Trump order].”
Put together all these offenses, the suit alleges, and the new Trump executive order violates Elshikh’s constitutional rights under the First and Fifth Amendments, as well as the Religious Freedom Restoration Act and the Immigration and Naturalization Act.
“We feel both bans, Version 1 and Version 2, are delivering on Trump’s promise to some of the far-right groups that he is going to have a Muslim ban,” Hakim Ouasanfi told me by phone Thursday. “Our viewpoint is that any discrimination is not acceptable. It is not the way to keep our country safe.”
“How can you explain to a daughter that your grandmother will not be able to visit?”
I asked Ouasanfi whether the temporary nature of Trump’s action made it less burdensome. “If my daughter is graduating in 90 days, then it is a burden,” he answered. “If the wedding is planned for May, that is a burden. I don’t think Muslims should plan their lives around Trump’s decision.”
On the other hand, Elshikh’s mother-in-law has not visited in 12 years — for whatever reason, she did not visit for the births of grandchildren or the various milestones in their lives. And now this 90-day delay is a violation of her family’s constitutional rights?
The plaintiffs did not file suit over earlier government actions that made coming to the United States a difficult and drawn-out effort. Some in the Obama administration made clear that it could take years for a Syrian to be admitted to the U.S. But when Trump announced a 90-day delay, the Hawaii plaintiffs went to court. Why?
Perhaps there is a clue in some of the words in the lawsuit that convey emotion. Elshikh and other Muslims feel this or that, or they are devastated, or there is this or that perception, or this or that message conveyed. It could be that much of the energy behind the lawsuit is emotional, caught up in a hysteria about Donald Trump as much as a rational reading of the new executive order.
Trump’s defense against charges that the order is somehow a “Muslim ban” — the argument that the new order affects just 6 out of 49 majority-Muslim countries and that it applies to countries that make up just ten percent of the world’s Muslim population — those arguments, while persuasive, just don’t address the emotional damages, based on perceptions, that Elshikh claims in the Hawaii suit.
Now the Hawaii case goes to court. The new Trump order was amended specifically to address some of the legal objections raised against the original order in court challenges across the country. But how to craft an order to protect feelings?