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Darweesh, et al. v. Trump, et al. (E.D.N.Y)


In Darweesh v. Trump, the district court for the Eastern District of New York is being asked to grant a preliminary injunction blocking President Trump’s travel and refugee ban on the grounds that it violates the Religion Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, and the ban on nationality discrimination in the issuance of immigrant visas contained in the INA.

On January 27, 2017, President Trump issued an executive order that banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen – all majority Muslim countries – from entering the United States. It also gave preference to non-Muslim refugees over Muslim refugees entering from other countries worldwide.  The order abridged the rights of countless individuals with ties to the seven Muslim-majority countries named in the order, barred from entry into the United states hundreds of visa holders who had already undergone months of rigorous vetting, and led to the unjustified detention at airports of countless individuals lawfully entering the country.

Hameed Darweesh, an Iraqi who has worked for the United States military, and Haider Sameer Abdulkhaleq Alshawi, also an Iraqi, were detained at John F. Kennedy airport just hours after the executive order went into effect.  Both men had valid entry documentation, and had been approved to travel to the United States.  Darweesh and Alshawi filed an Emergency Motion for Stay of Removal on behalf of themselves and other individuals facing the same predicament. Judge Ann Donnelly of the Eastern District of New York granted their motion for emergency relief.  The case was subsequently transferred to another federal judge, who is considering whether to grant preliminary injunctive relief to the petitioners and to the State of New York, which intervened in the case supporting the petitioners.   

On February 16, 2017, CAC, together with co-counsel, filed a friend-of-the-court brief on behalf of 167 members of Congress supporting the petitioners, arguing that because the order discriminates on the basis of religion, it cannot be squared with the text and history of the Constitution.  One of our nation’s most deeply rooted constitutional values is that the government must neither establish nor favor (or disfavor) any particular religion.  Both Article VI and the First Amendment of the Constitution forbid singling out members of a specific religion for disparate treatment.  Additionally, religious discrimination violates the Fifth Amendment’s guarantee of due process, which protects both citizen and noncitizens.  Our brief also argues that the executive order discriminates on the basis of national origin in violation of equal protection principles and the Immigration and Nationality Act, which bans such discrimination in the issuance of immigrant visas.  

The court will likely hear oral argument on this motion late this winter or early spring.

Briefs filed by CAC: