January 30, 2017
With protests engulfing America’s major airports nationwide Saturday, a Brooklyn federal judge temporarily blocked key parts of President Donald Trump’s executive order closing the country’s borders to Syrian war refugees and immigrants from seven Muslim-majority nations.
In a swift rebuke of one of Trump’s most controversial campaign promises, U.S. District Judge Ann M. Donnelly of the Eastern District of New York partially stayed the executive order just a day after the president signed it, barring the government from removing or deporting anyone subject to the directive.
“It is appropriate and just that, pending completion of a hearing before the court on the merits of the petition, … the respondents be enjoined and restrained from the commission of further acts and misconduct in violation of the Constitution as described in the emergency motion,” Judge Donnelly wrote.
The executive order, titled “Protecting the nation from foreign terrorist entry into the United States,” would ban Syrian refugees indefinitely and suspend refugee admissions altogether for 120 days.
It would also prohibit anyone except U.S. citizens — including legal immigrants and other lawful residents — from entering the country after traveling to Iran, Iraq, Libya, Somalia, Syria, Sudan or Yemen for the next 90 days.
The same day he signed the order, Trump signaled in an interview with the Christian Broadcasting Network that the restrictions, which he has referred to as “extreme vetting,” would apply more stringently to Muslims fleeing the civil war in Syria than to Christians facing religious persecution. But he did not offer any details.
Although the ruling blocks the government from turning anyone away at American airports under the travel ban, it was not immediately clear whether the court order lets the government prevent travelers from boarding U.S.-bound planes at their points of origin.
Emergency habeas petition
Judge Donnelly’s decision came after an emergency evening hearing in a class action filed by the American Civil Liberties Union challenging the executive order on behalf of Hamid Darweesh, Haider Alshawi and anyone else the travel ban would exclude. The suit requests writs of habeas corpus on behalf of anyone affected by the ban.
Darweesh and Alshawi are Iraqis already granted asylum because they or family members worked with coalition military forces during or after the U.S.-led war to topple Saddam Hussein. At the time the ACLU filed the petition Saturday, they were in U.S. Customs and Border Protection custody at John F. Kennedy International Airport in New York, although they have since been released.
According to the ACLU petition, the executive order violates the Due Process Clause and the Equal Protection Clause of the Fifth Amendment, the asylum rights granted to refugees by federal immigration and international law, and the Administrative Procedure Act.
Judge Donnelly did not rule on those claims. But she said an injunction was appropriate, citing the “imminent danger” of irreparable harm to wrongfully removed travelers and finding that the stay would “not injure the other parties interested in the proceeding.”
The judge did, however, predict that the habeas petitioners would likely succeed on the merits of their due process and equal protection claims.
Federal judges in Boston, Los Angeles, Seattle and Virginia granted similar stays on behalf of other affected refugees late Saturday and over the course of the day Sunday, according to Reuters.
Large demonstrations continued across the country and throughout the world Sunday as teams of civil rights attorneys descended on arrival terminals for a second straight day to assist refugees and immigrants caught up in the travel ban.
There remained widespread confusion about how the ban was supposed to operate to begin with, how much of it was still in effect after Judge Donnelly’s decision and even whether the Trump administration would spark a constitutional crisis by defying the court order.
CNN reported Sunday that Trump’s political staff had taken the unprecedented step of drafting the executive order without consulting White House attorneys or looping in agencies such as the State Department, Justice Department and Homeland Security Department, which did not get a glimpse of the new policy until shortly before the president signed it.
Customs and Border Protection removed at least one group of travelers under the executive order before Judge Donnelly had the chance to hear the ACLU’s emergency stay motion.
Customs agents in Philadelphia reportedly put a Syrian family of six, holding valid immigration visas, on a return flight to Qatar on Saturday afternoon.
Philadelphia’s Democratic mayor, Jim Kenney, led protests at the city’s airport later that day.
Constitutional crisis at Dulles?
Meanwhile, a potential constitutional crisis was brewing at Washington Dulles International Airport in Virginia, where customs agents effectively ignored the court rulings all day Saturday and into Sunday, summarily detaining travelers subject to the ban without processing them or letting them see lawyers, several news media outlets reported.
According to an account in The Daily Beast, Democratic U.S. Sen. Cory Booker of New Jersey arrived at Dulles on Saturday evening with a copy of a stay order signed by U.S. District Judge Leonie Brinkema of the Eastern District of Virginia.
After demanding to speak to customs officials, Booker reportedly “disappeared down a hallway blocked off by police,” returned and said customs agents had refused to speak to him about giving the detainees access to attorneys. Lawyers on the scene “concluded that … someone was in contempt of court,” the website reported.
Homeland Security signals it will comply
Republican U.S. Sens. Lindsay Graham of South Carolina and John McCain of Arizona, national security hawks who have not been shy about criticizing Trump’s foreign policy stances, also came out against the executive order Sunday, calling the travel ban “hasty” and saying it “risks harmful results.”
“We are particularly concerned by reports that this order went into effect with little to no consultation with the departments of State, Defense, Justice and Homeland Security,” they wrote in a statement. “Ultimately, we fear this executive order will become a self-inflicted wound in the fight against terrorism.”
Trump criticized the two Republican senators on Twitter a few hours later, writing that “they are sadly weak on immigration.”
Homeland Security Secretary John Kelly signaled later Sunday that his agency would comply with the court order.
“Lawful permanent resident status will be a dispositive factor in our case-by-case determinations,” he said in a statement, meaning the executive order will not apply to green card holders.
But Kelly did not mention visa holders, whom Judge Donnelly’s ruling also explicitly covered. Nor did he say whether the Homeland Security Department would seek to enforce the refugee ban by keeping certain travelers from boarding their flights in the first place.
It was also not immediately clear what impact Kelly’s statement would have on the tense legal standoffs unfolding at Dulles and other airports around the country.
Democratic U.S. Sens. Tammy Duckworth and Dick Durbin of Illinois responded to reports of border patrol defiance in a letter urging the Homeland Security Department’s inspector general to investigate whether customs agents were systematically breaking the law.
“The United States Constitution means little if law enforcement agents disregard it, or if Americans are unwilling to defend its principles and respect foundational constitutional rights,” they wrote Saturday.
Trump tweets his response
Trump again took to Twitter to defend the ban Monday morning, greeting a potential third day of nationwide demonstrations by mocking congressional Democrats and blaming protesters for slowing down the “extreme vetting” process.
Only 109 people were detained under the executive order in its first two days out of more than 325,000 travelers, he said in a tweet.
“Big problems at airports were caused by Delta computer outage, protesters and the tears of Senator Schumer,” Trump wrote, referring to Democratic Minority Leader Chuck Schumer of New York. “Secretary Kelly said that all is going well with very few problems. MAKE AMERICA SAFE AGAIN!”