Hawaii's case against Trump's travel ban, debunked. By Nolan Rappaport
Hawaii has filed a lawsuit challenging President Donald Trump’s revised version of his Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” on four main grounds:
1. Hawaii claims the Order violates the prohibition against nationality-based discrimination in the Immigration and Nationality Act (INA).
This argument is based on 8 U.S.C. § 1152(a)(1)(A) of the INA, which prohibits discrimination on the basis of nationality. Hawaii claims that the EO violates this provision by prohibiting nationals of six countries from entry into the United States.
But this interpretation takes the section out of context. It just applies to the per country levels for the annual allocation of immigrant visas to aliens coming to the United States to live here permanently.
In the section titled “Numerical limitations on individual foreign states,” it states that “Except as specifically provided in paragraph (2) [family-sponsored and employment-based immigrants] and in sections 1101(a)(27) [special immigrant], 1151(b)(2)(A)(i) [aliens not subject to direct numerical limitations], and 1153 [allocation of immigrant visas] … no person shall … be discriminated against in the issuance of an immigrant visa because of the person's … nationality.”
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Published originally on The Hill
About the author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.