A lawyer who got Trump's first travel ban halted says his new one won't hold up in court either


On January 27, President Donald Trump signed an executive order that threw airports into disarray and resulted in Customs and Border Protection agents effectively targeting people of color trying to enter the U.S., including green card holders and American citizens. Several legal challenges arose, and as a result, it has been effectively frozen pending the outcome of those cases.

On Monday, Trump signed another executive order with many of the same provisions as the first, plus a few amendments. The new order removes Iraq from the list of countries whose citizens are banned—people from Syria, Iran, Libya, Somalia, Sudan, and Yemen are still prohibited. The specific indefinite ban on Syrian refugees has been lifted. But refugees from all nations are banned from entering the U.S. for at least 90 days.

It also provides, at least in theory, exceptions for people from those countries with visas issued before the date of the first ban in January, including green card holders, citizens, and those visiting relatives in the U.S.

But what it doesn’t achieve, according to Nicholas Espíritu from the National Immigration Law Center, is changing the fundamentally Islamophobic intent of the travel and immigration restrictions—and no executive order can walk back the numerous public statements Trump and his team have made over time that it is their intent to exclude people from America based on their religious views.

“I think the one thing that hasn’t changed and can’t change from the previous order is that we know from multiple statements from the president and his advisers that there was anti-Muslim animus that animated the decision to implement travel ban,” Espíritu told me Monday afternoon. “That hasn’t changed and won’t change. We are living in a world where we know these actions are being taken on the basis of Islamophobic animus.”

Espíritu was one of the lawyers who first successfully argued for a stay on the original immigration order involving the case of two Iraqi citizens who were held at JFK on the first day the ban went into effect. He says this new version of the ban has the same fundamental flaws as the previous order, and that because they’re so similar, many of the court challenges to the first order will also address this week’s order.

One of the cases that the NILC is working on, for example, International Refugee Assistance Project v. Trump, challenges the 90-day ban on all new refugee settlement in the U.S. Espíritu said that challenge will continue and encompass what’s in the latest order.

And despite language in this week’s executive order that specifies that visa holders, green card holders, and citizens are exempt, Espíritu says the experience with CBP over the first order suggests that people could still be targeted based on their citizenship or purely through racial profiling.

“We know that even after the court blocked portions of the previously order that we had federal immigration agents continuing to deny people entry,” he said. “And even after additional court orders made it clear that this was not going to be permissible, we had numerous reports of really problematic questioning and vetting of individuals, often based on the country they came from or their perceived religious affiliations.”

Trump has denied the ban is about religion: “To be clear, this is not a Muslim ban, as the media is falsely reporting,” he said in a statement in January. “This is not about religion—this is about terror and keeping our country safe.”

But courts in several legal challenges to the initial order have found that argument unconvincing, citing numerous public statements Trump and his surrogates have made during and after his presidential campaign calling for a ban on Muslims entering the U.S.

NILC and the ACLU have said they will continue to challenge the Muslim ban in its latest form.

“The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, in a statement.

The new executive order is set to take effect March 16.

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