10 days into Trump’s ‘Muslim Ban’: a legal round-up

Chaos erupted in airports around the United States over the weekend of January 27-29 as Customs and Border Protection (CBP) officials scrambled to implement President Trump’s hastily issued immigration-related executive order.  Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” and signed on January 27, the order, among other things:

  • Suspends all “immigrant and nonimmigrant entry into the United States” of nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days (with a few limited exceptions for diplomats);
  • Suspends the admission of all refugees into the U.S. for 120 days;
  • Slashes the total number of refugees to be accepted this fiscal year from 110,000 to 50,000;
  • Prioritizes the admission of refugees fleeing religious persecution once the 120-day suspension ends, “provided that the religion of the individual is a minority religion in the individual’s country of nationality;” and
  • Indefinitely suspends the admission of all Syrian refugees because their entry “is detrimental to the interests” of the U.S.

Widely decried as a “Muslim ban” because of its focus on Muslim-majority countries and because of Trump’s numerous calls for such a ban while on the campaign trail, the order has not only sparked protests nationwide but has also set off a flurry of litigation in federal courts around the country, as lawyers flooded airports around the country over the weekend to offer their services to travelers affected by the order.

The most high-profile, and initially most successful, challenges were filed on January 28, the day after the order went into effect, and challenged section 3(c) of the order, which purported to ban the entry into the U.S. of all nationals of seven countries for 90 days.  These were generally petitions for habeas corpus, a well-established legal mechanism dating back to the Magna Carta and enshrined in the U.S. Constitution which allows individuals to challenge their detention and is considered a fundamental check on executive power in a democracy.  All of the lawsuits included combinations of the same handful of claims, arguing that the order violates:

  • Fifth Amendment right to due process
  • Fifth Amendment right to equal protection, because the order targets individuals based on their national origin and religion;
  • First Amendment’s establishment clause, because of the order’s lack of neutrality regarding different religions; and/or
  • Statutes such as the Immigration and Nationality Act (INA), Administrative Procedure Act, and Religious Freedom Restoration Act, all of which prohibit discrimination on the basis of nationality and/or religion.
protest-dc
Washington DC protests against the ‘Muslim Ban’, 29 January 2017. Photo by Stephen Melkisethian under CC license.

Darweesh v. Trump

One of the first decisions came from a federal court in New York, in a case filed by two Iraqi men who had been denied entry at John F. Kennedy International Airport.  Hameed Khalid Darweesh risked his life to serve as an interpreter and engineer for the U.S. Armed Forces in Iraq between 2003 and 2011; he was finally granted a Special Immigrant Visa last month after enduring over two years of interviews and background checks.  Haider Sameer Abdulkhaleq Alshawi is the husband of a woman who previously was threatened by insurgents because of her work with a U.S. contractor in Iraq; she and the couple’s young son were admitted to the U.S. as refugees and became lawful permanent residents (LPRs, or “green card holders”), and her husband was granted a follow-to-join visa.  Both men were detained at JFK on the night of January 27 and held by CBP solely on the basis of the executive order, leading the American Civil Liberties Union (ACLU) and other attorneys to file a habeas petition on their behalf, as well as “all others similarly situated,” on January 28.  That night, the judge in the case ordered an emergency stay of removal that prevented the removal of all detainees held in airports through at least February 21.  The stay was quickly determined to apply nationwide, but only prevented the removal of individuals already detained at airports, rather than having an effect on people still outside the U.S. but planning to travel here in the near future.

Aziz v. Trump

At almost the same time as the NY stay was issued, a federal judge in Virginia issued a different decision, in a case brought on behalf of two brothers from Yemen.  Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz are LPRs from Yemen who were detained at Washington Dulles International Airport on January 28.  Lawyers from the Legal Aid Justice Center filed a habeas petition on behalf of the brothers, as well as other LPRs detained at Dulles, that same night.  Soon thereafter, a judge granted the petitioners’ request for a temporary restraining order (TRO), though it was significantly narrower in scope than the Darweesh order, as it only ordered CBP officials at Dulles not to remove any LPRs from the airport for a period of seven days – in other words, while still a significant victory, it only applied to one airport, only applied to LPRs rather than all persons seeking admission, and only prevented their removal rather than allowing their entry into the country.

(In an amended complaint filed on January 30, it became known that the Aziz brothers had been put on a return flight to Ethiopia on January 28, possibly in violation of the TRO, and allegedly after having been coerced into abandoning their LPR status by signing Forms I-407, which they did not understand.  This underlying case is still pending.)

Louhghalam v. Trump

The broadest order from that first weekend came from a court in Massachusetts, also filed on January 28 on behalf of two Iranian LPRs.  Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam are both professors at the University of Massachusetts Dartmouth who were detained at Logan International Airport in Boston upon their return from an academic conference in France.  ACLU and other attorneys filed a habeas petition, and the next day a judge issued a TRO that went even further than the Darweesh order – also nationwide and not only prohibiting the removal of individuals targeted by the executive order but also their detention, for a period of seven days.  (Other plaintiffs were later added to the case, but on February 3, the court declined to extend the TRO.)

In the week following these court victories, confusion continued to reign.  While travelers’ experience at numerous airports demonstrated that CBP was clearly interpreting the executive order to apply to LPRs returning from abroad, newly appointed Department of Homeland Security (DHS) Secretary John Kelly announced on January 29 that he deemed the entry of LPRs “to be in the national interest” in order to exempt them from the order’s provisions.  After a reported behind-the-scenes clash, the White House agreed that LPRs should not be affected.  But many non-LPR travelers continued to be barred from flying to the U.S., in contravention of the nationwide Darweesh and Louhghalam orders, throughout the week.

The number of immigrant and nonimmigrant visa-holders affected by the executive order was also disputed.  The day that the executive order was released, the Department of State (DOS) surreptitiously “provisionally revoked” all immigrant and nonimmigrant visas previously issued to nationals of the seven listed countries, through an internal memorandum that was not made public until it came out in the course of the Louhghalam litigation a full six days later.  DOS officials later said that they had provisionally revoked 60,000 visas, while a Department of Justice (DOJ) lawyer stated in a hearing in the Aziz case that 100,000 visas had been revoked in response to the order.  DHS officials had previously stated that 721 people with visas had been denied the ability to board U.S.-bound planes in the first 72 hours after the order’s announcement.

Additionally, Acting Attorney General (AG) Sally Yates wrote a letter to her staff at the DOJ on January 30, stating that she was “not convinced” that the executive order is lawful, or that defending it “is consistent with [the Department’s] solemn obligation to always seek justice and stand for what is right.”  Shortly thereafter, the White House announced that Yates had “betrayed” the DOJ and was being replaced, while Trump’s nominee for the AG position, the notoriously anti-immigrant Jeff Sessions, awaits confirmation by the Senate.

Washington v. Trump

In the meantime, yet another federal court has issued an even broader order that prohibits enforcement of the executive order nationwide, at least for now.  On January 30, the state of Washington (later joined by Minnesota) sued the federal government, alleging damages and injuries on behalf of the state’s residents, businesses, and the state’s own “sovereign interest in remaining a welcoming place for immigrants and refugees.”  The state challenged the executive order on the same grounds as the other suits described above and similarly requested a TRO.  The administration opposed that motion on a number of grounds, principally arguing that the states do not have standing to sue, and that the President has Congressional authority to enact such an order, under both the executive branch’s broad plenary powers in immigration matters and section 212(f) of the INA, which gives the President the authority to suspend or impose restrictions on the entry of noncitizens into the U.S. whenever deemed to be “detrimental to the interests” of the U.S.  (It should be noted that the State Department maintains a list of every time a President has invoked section 212(f), and Trump’s current executive order is the most wide-ranging attempt to exercise that authority by far.)

On February 3, shortly after the Massachusetts court denied the motion to extend its TRO, the court in Washington granted the broadest TRO yet.  The TRO, which applies nationwide, prohibits the federal government from enforcing the ban on travel from the seven listed countries, from suspending any and all refugee admissions, or from prioritizing certain religious refugees over others, pending further legal proceedings.

The DOJ appealed, and the Ninth Circuit Court of Appeals declined to immediately reverse on February 5.  Since the TRO was announced, DOS and DHS issued statements saying they will abide by the ruling and will resume processing of visas under previously standard procedures.  In addition, DOS announced that visas that were provisionally revoked during the past week are now valid for travel.

Meanwhile, outside of the courts, President Trump tweeted no fewer than eight times in response to the TRO, referring to Judge James Robart (who was appointed by President George W. Bush and unanimously confirmed by the Senate) as a “so-called judge” whose decision “opens up our country to potential terrorists,” and suggesting that people “blame him and [our] court system” if “something happens.”

The President’s reaction to the court order is troubling, to say the least, though perhaps not surprising.  The underlying litigation on the merits in the Washington case remains pending before both the district and appellate courts, and many wonder whether this or another case challenging the executive order will eventually make its way in front of the U.S. Supreme Court.  For now, visa and travel procedures should be back to normal – hopefully it will stay that way.

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