Courts hear arguments challenging Trump's new travel ban

By Ian Simpson
U.S. President Donald Trump and Vice President Mike Pence (L) attend a healthcare meeting with key House Committee Chairmen at the White House in Washington, U.S., March 10, 2017. REUTERS/Carlos Barria

By Ian Simpson

GREENBELT, Md. (Reuters) - Court orders from judges in Maryland and Hawaii on Wednesday could decide the immediate fate of President Donald Trump's revised travel ban, which is set to take effect at 12:01 a.m. EDT (0401 GMT) on Thursday.

Refugee resettlement agencies suing the government asked a federal judge at a hearing in Maryland on Wednesday morning to halt implementation of the ban, arguing it discriminates on the basis of religion and violates of the U.S. Constitution.

The president's executive order, which the administration says is necessary for national security, temporarily bars the entry of most refugees as well as travelers from six Muslim-majority countries.

Both the refugee agencies and the government's lawyers faced tough questioning in the Greenbelt courtroom from U.S. District judge Theodore Chuang, who drilled down on the question of who would be harmed by the order, signed by Trump on March 6.

The agencies are asking the judge to enforce a temporary, nationwide halt to the ban while the case moves forward. Chuang said he would try to issue a written ruling on Wednesday, before the order is implemented, but said it might come after.

The executive order replaced an earlier, broader order that was signed amid much fanfare a week after the Republican president's Jan. 20 inauguration and that was soon hit by more than two dozen lawsuits around the country.

A federal judge in Seattle last month issued a nationwide halt to the first order in a decision was upheld by a U.S. appeals court.

In response to the legal challenges, the new order was more narrowly tailored to exclude legal permanent residents and existing visa holders. It also provides a series of waivers for various categories of immigrants with ties to the United States.

But critics have charged that the intent behind both policies was to discriminate against Muslims.

Chuang asked the refugee organizations, represented by the American Civil Liberties Union and the National Immigration Law Center, who would be most adversely affected by the new policy. To move forward with the suit the groups have to prove harm, or "standing."

"This will have real world impact on our clients," said National Immigration Law Center attorney Justin Cox, adding that U.S. citizens with relatives abroad should have the right to see their families and some refugees in the resettlement pipeline are in imminent danger.

The government countered that the pause is only temporary and is needed to improve vetting processes to protect against terrorist attacks.

The new order bars citizens of Iran, Libya, Syria, Somalia, Sudan and Yemen from entering the country for 90 days, but Iraq is no longer on the list. Refugees are still barred for 120 days, but an indefinite ban on all refugees from Syria was deleted.

The Department of Justice lawyers said the president has broad discretion to implement immigration policy and warned against the courts curbing those powers.

"If this court went down that road I think we could be in uncharted waters," said Jeffrey Wall, an attorney arguing for the Department of Justice.

HAWAII CASE

There will also be a hearing on Wednesday in a separate case brought by the state of Hawaii, which has argued that its universities and tourist economy would be harmed by the travel restrictions.

Hawaii sued in conjunction with a plaintiff named Ismail Elshikh, an American citizen from Egypt who is an imam at the Muslim Association of Hawaii. Elshikh says his family will be harmed if his mother-in-law, who lives in Syria, is prevented from visiting because of the restrictions.

Responding to this, the government said Elshikh had not been harmed because the ban allows for waivers, and his mother-in-law could apply for one.

The new order removed from the earlier ban a clause that said it would give special protections for religious minorities, after Trump had said in an interview that Christians refugees should be given preferences for entry.

While the text of the order does not mention Islam, the states and refugee support groups say the motivation behind the policy is Trump's promise during his election campaign of "a total and complete shutdown of Muslims entering the United States."

He made that pledge in December, 2015 as he vowed to take tougher counterterrorism steps days after a mass shooting by Islamic State sympathizers in San Bernardino, California.

The government said the courts should only look at the actual document and not at outside comments by Trump or his aides. In the Maryland hearing, government lawyer Wall denied the order discriminated against Muslims.

The first order took effect immediately, causing chaos and protests at airports across the country and around the globe and miring Trump's administration in an early controversy.

If the new ban goes ahead, advocacy groups said that lawyers will once again head to international airports to assist anyone who might be improperly detained or prevented from entering, said to Betsy Fisher, the policy director at the International Refugee Assistance Project.

But because the order included a 10-day lag before taking effect, far fewer people are likely to be caught out while traveling.

"There are going to be attorneys on the ground and ready to respond," Fisher said in a telephone interview. "But we're anticipating not seeing the same kind of chaos because there was an announcement in advance."

(Reporting by Ian Simpson in Greenbelt, Maryland, Mica Rosenberg in New York and Dan Levine in Honolulu; Additional reporting by Jonathan Allen in New York; Writing by Mica Rosenberg; Editing by Sue Horton and Frances Kerry)

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