The mounting number of civil rights violations against Muslims, Arabs, South Asians and anyone who is perceived to be of Middle Eastern heritage, is alarming. These violations are committed by our law enforcement, private and public institutions, as well as ordinary citizens.
The Executive Order has been temporarily blocked, a Supreme Court decision is pending
As early as 7 December 2015, in the midst of the Republican primaries, Donald Trump proposed a systemic policy of religious discrimination against Muslims with regards to immigration into the United States.
The trump campaign issued a press release setting forth his ideas to prevent Muslim immigration, and calling for a total “shutdown” of Muslims entering the United States until the government could understand the dangerous threat of “Islamic terrorism”, where it comes from and why.
True to his promise, President Trump issued an Executive Order on 27 January 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”.
Though the Trump Administration has adamantly claimed in the past week that the Order is a “travel ban” and not a “Muslim ban,” there is extensive extrinsic evidence that the intent and effect of the Order is in fact to preclude the 1/4 immigration of Muslims into the United States.
“1.3 billion Muslims are not dangerous to the United States”
One such example is the historical overview of the Order that Rudy Giuliani gave to a Fox News anchor on 29 January 2017 when questioned about the ban. He stated that President Trump told him that he wanted a Muslim ban and requested Giuliani to assemble a commission to show Trump the “right way to do it legally”.
What does the ban entail?
The crux of the Order places an immediate 90 day ban on immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen entering the US. The Order states that “they are deemed detrimental to the interests of the United States”.
Based on the language of the Order, the entry ban is applicable to not only nationals of the seven countries listed, but also dual nationals, where a person is a citizen of one restricted country and another non-restricted country.
There are literally hundreds of thousands of citizens of the United Kingdom and Canada who fall into this category and would be banned from entering the United States.
Syrians and refugees
Section 5 of the Order states that:
- All refugee admissions are suspended for 120 days.
- At the expiration of the 120 days, the Order directs the Department of Homeland Security to prioritize refugee claims by individuals who are members of the religious minority in their affected home countries.
- The Order states that the entry of Syrian nationals is detrimental to the U.S. and as a result, entry of all Syrians has been banned indefinitely.
Most noteworthy in this section is the fact that Trump, while he hopes to exclude Syrian Muslim refugees indefinitely, has specifically outlined an exception for the immigration of Christian refugees after the expiration of the 120 day period. The Order excludes only Muslim-majority nations.
By including a provision that prioritizes the immigration of “religious minorities” in these countries, the Order is very unambiguously stating that it will accept Syrian refugees who are Christian but not Muslim Syrian refugees.
Additionally, when Mr. Trump was interviewed by the Christian Broadcasting Network, he stated that he would prioritise the immigration of Christian refugees over those of other religions.
“Such an assumption may not only violate the Constitution of the United States but it is morally problematic”
President Trump intends to bar Muslims from entering the US which constitutes discrimination based on religion. 1.3 billion Muslims are not dangerous to the United States. Such an assumption may not only violate the Constitution of the United States but it is morally problematic.
There exist several arguments suggesting the Order is unconstitutional under the First Amendment’s Establishment Clause which prohibits the government from undertaking actions that unduly favor one religion over another. One of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect. If an action is intended to disfavor a particular religion, it violates the Establishment Clause.
“The Order does not appear to be a reasonable security measure that is narrowly tailored to achieve the purpose it espouses”
In addition, the order contradicts the Equal Protection Clause of the Fifth Amendment, and the Fourteenth Amendment. The Supreme Court long has recognized that the government violates these fundamental constitutional requirements when it discriminates on the basis of religion. Though the Trump Administration has been denying that the intent of the Order is to
Though the Trump Administration has been denying that the intent of the Order is to disfavor Islam, there can be no sustainable argument against the fact that the intent and effect of the Order is to discriminate against Muslim immigrants.
It is clear from Trump’s campaign promises regarding a Muslim ban, Giuliani’s statements following the execution of the Order, and the language of the Order itself, that the purpose and effect of the order is to prevent the entry of Muslim immigrants.
The Constitution’s requirement for equal protection of the law under the Fifth Amendment is offended if the government discriminates on the basis of religion in deciding who to allow entry to the United States.
“If an action is intended to disfavor a particular religion, it violates the Establishment Clause”
Typically, laws that discriminate are declared unconstitutional if they are too “over-inclusive,” regulating many more people than necessary to achieve the government’s goal. The Order does not appear to be a reasonable security measure that is narrowly tailored to achieve the purpose it espouses. The Fourteenth Amendment to the Constitution specifically sets forth that these Constitutional protections are not confined to the protection of citizens alone. Rather, it extends the universal protections, without regard to race, colour, nationality, or religion, to any person within the territorial jurisdiction.
President Trump couches his authority for the Order upon a statute of the US Code, stating the president has the authority to use a proclamation to suspend entry of “any alien or class of aliens into the United States” that would be detrimental to its interests.
“History is in the making as we witness a showdown between the Executive Branch and the Judicial Branch”
However, the 1952 law does not allow a president to remove those who are already lawfully present in the country (such as visa holders at airports). In addition, the 1952 law upon which Trump relies was superseded by another – the Immigration and Nationality Act of 1965. Congress repealed national origin quotas in this later law and inserted a clause on
In addition, the 1952 law upon which Trump relies was superseded by another – the Immigration and Nationality Act of 1965. Congress repealed national origin quotas in this later law and inserted a clause on non-discrimination in immigration decisions. The relevant portion of the law states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
The judicial challenge to the Order: What next?
Within a day of the Order going into effect, the Eastern District of New York Court held that the petitioners and all others in their position would have a strong likelihood of proving that their removal from the United States would violate their rights to Due Process and Equal Protection as guaranteed by the US Constitution. On 10 February 2017, the Western District of Washington at Seattle granted a Temporarily Restraining Order by uniformly halting the Executive Order Ban. As discussed, the judges have found – at least temporarily – that the Order violates the Equal Protection Clause, the First Amendment
As discussed, the judges have found – at least temporarily – that the Order violates the Equal Protection Clause, the First Amendment Clause and the Due Process Clause under the Constitution.
History is in the making as we witness a showdown between the Executive Branch and the Judicial Branch. A Supreme Court decision on National security of the Executive Order v. preserving the Bill of Rights under the Constitution is imminent.
Omar Mohammedi is the founder and managing partner of Omar T. Mohammedi Law Firm and President of the Association of Muslim American Lawyers. He is a Professor at Fordham Law School and served as the first Arab-Muslim New York City Commissioner on Human Rights from 2002 to 2014.
Follow him on Twitter: @OTMLAW
Regrettably, our nation is beginning to head down a path where certain groups are discouraged or excluded from holding public office or otherwise contribute to the defense of the U.S. Constitution. Historically, minorities have always struggled to socially or politically engage in the U.S. whether it be the Italians, Irish, Japanese, Mexican and, of course, African-American. Now the torch has been passed to the Arabs and Muslims who are victims of an insidious campaign. Arabs and Muslims have been excluded from public appointments or office not because of individual shortcomings, but rather based on vicious smear campaigns and guilt by associations. The whole idea of excluding a person or a group of people based on their racial, ethnic or religious affiliations contradicts the foundation of this nation as the rich and diverse land of freedom.
Most recently, Mr. Pervez Ahmed was nominated to be a Human Rights Commissioner in Jacksonville, Florida. His nomination was viciously opposed by radical anti-Muslim groups including ACT! For America and Stop the Islamization of America (SIOA). Both organizations, and their bigoted followers, continue to smear Muslims who strive to serve the American public and even defend the U.S. Constitution. They claim six degrees of alleged terror ties. They cry about a top secret Muslim conspiracy to replace the Constitution with Shariah law. They cry about any preposterous claim they can conjure about Islam and Muslims with utter disregard to facts and reality.
The campaign against Mr. Ahmed was reminiscent of another campaign against a human rights commissioner some eight years earlier. In 2002, Omar Mohammedi, an Arab-American and Muslim attorney, was up for the position for the New York City Human Rights Commission. While Mayor Bloomberg stood by his appointment, many anti-Islam groups protested at Mr. Mohammedi’s appointment. Even during Mr. Ahmed’s appointment eight years later, the same Islamophobes once again attacked Mr. Mohammedi and urged supporters to call for his removal.
What exactly was there complaint against Mr. Mohammedi? According to SIOA, the main complaints against Mr. Mohammedi were his representation of the Six Imams and some defendants in the 9/11 civil litigation. In both cases, Mr. Mohammedi had chosen the side of the U.S. Constitution—not the side of Muslims.
Ironically, the treatment of Mr. Mohammedi’s reputation during these cases was not based on his professional ability to offer the best representation to his clients. Such advocacy can only praised by the ethical standard as well as the Judges. Mr. Mohammedi’s professional work is only questioned because he is a Muslim and an Arab. Peter King expressly questioned Mr. Mohammedi’s professionalism in representing the six Imams when he asked “does his legal position taken on behalf of the imams represent his personal beliefs or is he just acting as a law?”
Mr. Mohammedi, as an Arab and Muslim, was treated differently for exercising his rights and freedoms than non-Arab and non-Muslim lawyers. In fact, co-counsel for Mr. Mohammedi on this case, Mr. Frederick Goetz—a white attorney—did not get the reputation of “terror lawyer” as a result of this case. Mr. Mohammedi, meanwhile, received death threats and public protests.
Similarly, the 9/11 litigation is a complex multidistrict litigation case with thousands of plaintiffs and defendants involved. Likewise, there are hundreds of law firms on both sides of the case. Many of the 9/11 defendants are represented by major American law firms such as Jones Day, Sheppard Mullin Richter & Hampton LLP, Busch & Nubani P.C., Bernabei & Katz PLLC and many others. Each of these firms play a major role in the litigation and none of them have earned the reputation of “terror lawyers.” However, Mr. Mohammedi is the sole attorney to earn that reputation over this case as he is the only Muslim attorney on this case.
Objections to Mr. Mohammedi’s representation of defendants in the 9/11 litigation also raise an eyebrow as to the objectives of these radical anti-Islam movements. Many, if not all, of these movements claim a respect for the U.S. Constitution, yet they frequently advocate for that which is unconstitutional. For example, it is a constitutional right for every defendant sued in an American court to retain counsel. Furthermore, when an attorney represents a defendant he/she does not become immediately responsible for each and every act of that defendant whether related to the litigation or not. If this were the case, then no attorney would ever choose to represent unpopular clients resulting in a stark violation of the Due Process rights promised by the U.S. Constitution.
So what is the message being sent? The message is that Arabs and Muslims have no role in defense of the U.S. Constitution whether as professionals or public officials. Hate campaigns that are gaining more steam continue to vilify all Arabs and Muslims in everything they do even if it is a positive contribution to this country, while non-Muslims do not receive the same treatment for the same acts. Omar Mohammedi has a sterling reputation of upholding the laws of the land and defending the rights of all people whether Muslim, Jew, Christian or anything else. Yet, many in the blogosphere and in growing Tea Party movements have him dubbed as a terrorist lawyer who has a secret agenda to take down the U.S. Constitution from the inside.
Frankly, this has to stop otherwise it will have an erosive effect on the constitutional freedoms ensured to all Americans. Those who vilify Arabs and Muslims in the name of the Constitution are, ironically, undermining the Constitution itself. Those who do truly value the principles upon which this county was founded must take a stand and drown out these preposterous voices every time an Arab or Muslim is up for a public appointment or election—not for the sake of those individual Arab or Muslim candidates, but for the sake of preserving the U.S. Constitution in the public sphere.
By: Tariq Hussain, Esq. firstname.lastname@example.org
Welcome to the OTMLAW Blog maintained by the Law Firm of Omar T. Mohammedi, LLC.
The Law Firm of Omar T. Mohammedi, LLC provides services to its clients in a broad range of practice areas such as commercial/business transactions (e.g. buy/sell agreements, joint ventures, import/export, commercial real estate and intellectual property), international trade and investment, and civil litigation. The Law Firm of Omar T. Mohammedi, LLC is also one of the few firms actively practicing in the niche area of Islamic Estate Planning.
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June 24th marked a major victory for our clients in the “Six Imams” case, with Judge Montgomery issuing a sharply worded opinion and order which, for all intents and purposes, voided a law that would proliferate racial profiling and discrimination against minorities–particularly those of Muslim or Arab descent by extending immunity to law enforcement officers. In its written decision, the Court denied the defendant airport officers’ motion for summary judgment, and affirmed an individual’s freedom from unreasonable search and seizure under the 4th Amendment.
The Court clearly ruled that the actions of the Imams prior to their flight did not justify their detention and arrest, stating that “the right not to be arrested in the absence of probable cause is clearly established and, based on the allegations … no reasonable officer could have believed that the arrest of the Plaintiffs was proper.“ The ruling explained, further, that the Imams were subjected to the “extreme fear and humiliation of being falsely identified as dangerous terrorists.”
The defendants’ motions were centered around a 2007 law passed by Congress directly in response to this case. The statute (6 U.S.C. 1104) was then signed by George Bush to be retroactively applied to this incident. The new law aimed to grant immunity to bystanders who reported suspicious activity. However, the language also granted vague immunity to law enforcement and airline officials.
In its decision, the Court denied the defendant airport officers their motion for summary judgment, stating that the new law did not extend any new immunity for law enforcement officers; law enforcement officers cannot violate clearly established rights, such as freedom from unreasonable search and seizure under the Fourth Amendment, and then hide behind broad statutory immunity.
Understandably, the case has generated a significant amount of debate on the power of law enforcement to limit personal freedoms in the name of security, especially in the context of air travel. Judge Montgomery’s carefully considered opinion and order evinces a meticulous understanding of the relevant issues, taking special care to explain that “the specter of 9/11” cannot be used as an absolute excuse to suspend Constitutional rights and guarantees.
For a more comprehensive resource on the ruling or the case in general, read the CAIR press release.
Fordham Law School and the Association of Muslim American Lawyers (AMAL) co-sponsored a program on Islamic Finance on Monday, February 7, 2011.
Managing Partner, Omar T. Mohammedi, Esq. and Monem A. Salam, of Saturna Capital, were the featured panelists.
Click Here for more information.
The panel was a great success as only standing room remained. We look forward to more collaborations between Fordham Law School and the Law Firm of Omar T. Mohammedi, LLC in the future on the vast topic of Islamic Finance.