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State, for example, which managed to stop the first order, has gone so far as to argue the new order and the now-rescinded original measure are identical, and has asked a judge to simply apply his emergency stop to the new order as if nothing has changed.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."
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.
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 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."
"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.
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?
Byron York is chief political correspondent for The Washington Examiner.