The Commonwealth of Virginia is asking a federal court to force the federal government to show why it should not be held in contempt for violating the court's orders to stop enforcing President Trump's executive order on immigration.
In a court filing late Wednesday night, Virginia and the Legal Aid Justice Center, a Virginia-based legal aid group, argued news reports and first-hand accounts by members of Congress show Customs and Border Protection agents refused to abide by a temporary restraining order issued by the U.S. District Court for the Eastern District of Virginia over the weekend suspending Trump's executive order for seven days and allow lawyers access to lawful permanent residents of the U.S.—more commonly known as green card holders—who were being detained at Dulles International Airport.
The ongoing legal drama began last Friday when President Trump issued an executive order temporarily suspending immigration and travel to the U.S. from seven majority-Muslim countries. The order appeared to initially include permanent lawful residents of the U.S., but the White House later said it did not.
Judge Leonie Brinkema issued the temporary restraining order Saturday night, but lawyers spent Sunday trying to figure out how many, if any, detainees were left at Dulles, and if green card holders were still being removed from the country.
In an amended complaint filed Monday and joined by the Commonwealth of Virginia on Tuesday, the Legal Aid Justice Center and the law firm Mayer Brown, LLP allege that two Yemeni brothers who arrived at Dulles were coerced into signing forms—without any access to legal counsel—relinquishing their status as permanent U.S. residents.
According to the complaint, customs officials "lied to immigrants arriving after the Executive Order was signed, falsely telling them that if they did not sign a relinquishment of their legal rights, they would be formally ordered removed from the United States, which would bring legal consequences including a five-year bar for reentry to the United States. Because respondents knew that there was no valid, legal basis to remove these individuals from the United States, these were material, false representations."
The brothers, Tareq and Ammar Aqel Mohammed Aziz, were forced to purchase tickets back to Addis Ababa.
In a signed affidavit to the Monday filing, U.S. Sen. Cory Booker said his staff presented a Department of Homeland Security agent with the temporary restraining order. According to the affidavit, the DHS agent said that "lawyers are looking at the order." Booker and several other members of Congress say they were blocked from speaking with CBP officials at Dulles.
The Department of Homeland Security maintains that it followed all court orders. "Just to be clear, to the best of our knowledge, no CBP officer knowingly, intentionally violated the court order," Homeland Security Secretary John Kelly told The Daily Beast.
Whether DHS immediately complied with the order appears to be an open question, and one Virginia, the Legal Aid Justice Center, and Mayer Brown, LLP say they haven't been able to get a clear answer on, which is why they're asking the court to force DHS to provide proof.
The strict security in airport terminals, the lack of transparency from DHS officials, and the total confusion surrounding the surprise rollout of Trump's immigration order make it hard to know what really happened. The numbers provided by the White House on how many travelers were detained or turned back from entering the U.S. turned out to be significantly low-balled. There were unconfirmed but widely circulated reports that U.S. Marshals and the U.S. Attorneys Office were refusing to enforce a court order regarding detainees at Los Angeles International Airport. At least one Iranian man who was removed from the country was on his way back to the U.S on Thursday. The Department of Homeland Security Inspector General announced late Wednesday night that it will investigate the implementation of Trump's immigration order.
The weekend chaos raised the ugly specter of a constitutional showdown between the judiciary and an executive branch backed by recalcitrant law enforcement.
"So far, the refusal by CBP to abide by some court orders is troubling, but there's some hope that this is the fog of war and that no one knew what was happening," says defense attorney and legal blogger Ken White. "On the other hand, it bears watching closely because this is an administration that ran on shots against courts and judges—particularly those of Mexican heritage—and continues to do so. The rule of law is largely dependent on the executive having some fear of other branches, so if the executive basically says we're not going to obey court orders we don't like, how do you vindicate your constitutional rights?"
In the airport terminals where this national drama played out, where volunteer lawyers worked through the weekend to secure the release of detainees and convince courts to put the brakes on Trump's executive order, there was a more hopeful atmosphere. Mirriam Seddiq, a Maryland immigration lawyer who was staked out at Dulles International Airport, told Reason on Monday that, despite the frustration and government obfuscation, she can see the rule of law at work.
"We're in the airport. We don't go outside until it's dark, and then we come back again at 8 a.m.," Seddiq said in an interview with Reason on Monday. "If you're here in this bubble, where you're fighting this fight and winning some battles, little by little, we still do have the rule of law, because we can see it. Our congresspeople are coming here. Our system is working. Is it shocking that the executive branch is refusing to comply? Yes, but you may actually see some real power by our judiciary, maybe by some members of Congress who are willing to come forward. Things are happening. In here, it doesn't feel that dire."
The legal challenges to Trump's order continue to mount in federal courts across the country. There are currently 10 lawsuits challenging it. However, Trump enjoys the support of rank-and-file federal law enforcement. In a joint statement released over the weekend, the National Border Patrol Council and ICE Council, the unions of Border Patrol and ICE agents, applauded Trump's executive orders:
As representatives of the nation's Frontline immigration officers and agents responsible for enforcing our laws and protecting our borders, we fully support and appreciate President Trump's swift and decisive action to keep the American people safe and allow law enforcement to do its job. We applaud the three executive orders he has issued to date, and are confident they will make America safer and more prosperous. Morale amongst our agents and officers has increased exponentially since the signing of the orders. The men and women of ICE and Border Patrol will work tirelessly to keep criminals, terrorists, and public safety threats out of this country, which remains the number one target in the world – and President Trump's actions now empower us to fulfill this life saving mission, and it will indeed save thousands of lives and billions of dollars.
Customs and Border Protection did not return multiple requests for comment for this article.