Travel Ban

Our Travel Ban Litigation Resource Post is Now Up-to-Date

By Quinta Jurecic
Monday, September 10, 2018, 1:40 PM

Since the initial days of the first travel ban, Lawfare has curated a resource of court documents in the litigation against each iteration of the Trump administration’s executive orders limiting travel into the United States from citizens of largely Muslim-majority countries. The page started with just a handful of court cases; it currently includes over 50. And now, it’s completely up to date.

We took a brief break from updating the page in the run-up to the Supreme Court’s decision in Hawaii v. Trump, but now each case listed has the full slate of substantive documents available, including the Supreme Court’s ruling—and there are some new cases, too. Dissenting in Hawaii, Justice Stephen Breyer pointed to a sworn affidavit provided by a consular official in a recent case in the Eastern District of New York, Alharbi v. Miller, stating that the waiver process was merely “window dressing” and officials lacked the ability to grant waivers. Most of the documents in Alharbi are under seal, including the affidavit in question, but we’ve added those that are available.

Breyer cited Alharbi to suggest that the Supreme Court should send Hawaii back to the district court to examine the adequacy of the waiver process—and, therefore, whether the travel restrictions effectively added up to a Muslim ban in the systematic absence of waivers. A majority of the justices, of course, did not agree. But in addition to the ongoing proceedings in Alharbi, one other group of plaintiffs has taken up Breyer’s invitation. Plaintiffs in Emami v. Trump, filed in the U.S. District Court for the Northern District of California, explicitly challenge the administration’s use of waivers, arguing that the government has not provided “any meaningful information to the public—about waiver application procedures, how waiver eligibility determinations are made, or whether any recourse exists for persons who are not considered for a waiver in the first instance.”

Emami is still in its early stages, but the case has the potential to shed light on how the travel ban waiver process actually works. And given that the waiver option was key to the government’s legal defense of the ban before the Supreme Court, this could be a productive approach for the plaintiffs. Suffice to say that the litigation over the travel ban is far from over.

We’ll be keeping a close eye on Emami and Alharbi as they move forward and will add new documents as they become available in those and other cases. The page aims to be a one-stop shop for litigation documents in these cases, but a project this big can never be entirely comprehensive. If you’re aware of a case or a document we’re missing, let us know.