Hours after a federal judge ordered customs officers to provide lawyers to travelers detained at Dulles airport last Saturday, senior Trump administration officials instructed the guards to give the travelers phone numbers of legal services organizations, ignoring a mass of lawyers who had gathered at the airport.
Most of the legal services offices were closed for the weekend, effectively preventing travelers with green cards from obtaining legal advice.
Story Continued Below
The move was part of what lawyers contend was a series of foot-dragging actions by the administration that appeared to violate court orders against the Trump’s controversial travel ban.
A little over 24 hours after Trump ordered the ban, federal judges in New York, Massachusetts and Virginia issued emergency rulings blocking parts of it. But at Dulles and other airports, customs officers refused to change their procedures until their superiors conveyed instructions from agency lawyers reviewing the court decisions, according to three lawyers familiar with the situation and a congressional staff member investigating the matter.
In the early hours of Sunday morning, at least four hours after the first of the court orders came down, Todd Owen, Customs and Border Protection’s executive assistant commissioner, convened a conference call for field operations to deliver new guidance, according to a person briefed on the call.
But rather than allow the detained travelers to contact lawyers waiting to serve them, Owen’s team advised CBP officers at Dulles to give the travelers phone numbers for legal-services organizations.
“This is a runaround they’re trying to do on these orders,” said Sirine Shebaya, one of the immigration lawyers on the scene. “This is an unchecked executive that thinks it’s above the judiciary.”
Acting Deputy Commissioner Randolph D. Alles was also aware of the situation, according to Rep. Gerry Connolly (D-Va.), who said CBP’s congressional affairs staff offered to put Alles on the phone with him on Sunday.
“Downtown was aware,” Connolly said, referring to CBP headquarters. “They’re not rogue elements in the U.S. government and they are not somehow above the law and beyond accountability and transparency in their operations, and they must follow due process, and they must be accountable to Congress.”
Virginia Attorney General Mark Herring, who is suing to stop Trump’s travel ban, said CBP should prove it complied with the court order or be held in contempt. On Friday, U.S. District Judge Leonie Brinkema said she would consider Herring’s motion.
“Whether or not people who were in control should have acted differently, I’m not in a position to address” at the moment, Brinkema said at the hearing. But she emphasized “the great need to be careful at the airport not to violate the court order because there are sanctions that can result.”
Lawyers believe that CBP was overzealous in enforcing Trump’s executive order, which was rolled out with almost no advance planning or coordination. The order immediately set off chaos for international travelers and sparked protests at airports across the country. After reports surfaced of people with approved visas being deported or pressured into signing away their rights to enter the U.S., attorneys demanded the ability to advocate for the rights of immigrants swept up in what Trump has called “extreme vetting.”
The Department of Homeland Security’s internal watchdog said it’s investigating claims that CBP defied court orders after receiving complaints from lawmakers and whistleblowers. Congressional Democrats also pounded DHS with letters demanding answers and records. Sen. Cory Booker (D-N.J.), speaking at Dulles late Saturday, called the apparent noncompliance a “constitutional crisis.”
In Boston, where federal judges ordered the government to stop detaining or deporting people who would be allowed into the U.S. were it not for Trump’s executive order, CBP Watch Commander Jason Jalbert told airlines the agency would continue deporting people at Logan International Airport “where it is permissible under the law.” An Iranian scientist with an approved visa sued CBP for keeping her off a Tuesday flight from Switzerland to Boston.
The CBP officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command.
CBP and DHS said they’re complying with the court orders while continuing to implement Trump’s ban. In response to POLITICO’s questions, a CBP spokeswoman declined to comment on pending litigation.
“Since the court orders related to the executive order were issued over the weekend, CBP immediately began taking immediately began taking steps to be in compliance,” Homeland Security Secretary John Kelly said in a Tuesday press conference. “We are and will remain in compliance with judicial orders.”
Acting CBP Commissioner Kevin McAleenan said at the press conference that his agency is “responding immediately to any court orders.”
Soon after Judge Brinkema issued her temporary restraining order around 9:30 p.m. last Saturday, lawyers at Dulles brandished copies of the order to demand entry to the secure area where CBP was questioning immigrants, including green card holders. The lawyers at the scene established whom CBP was holding by talking to family members waiting for them.
When an aide to Booker asked, through an airport police officer, to speak to the CBP shift commander, the commander declined, saying he only took orders from his superior.
The aide reported the problem to CBP headquarters, where an official answered that “individuals are not entitled to counsel during immigration processing at a port of arrival,” according to an affidavit Booker submitted in the Virginia lawsuit. When the aide pointed the judge’s order, the CBP official said, “The lawyers are looking at the order.”
Booker himself came to the airport close to midnight and asked to speak to CBP officials. An airport police officer prevented him from entering CBP’s area but agreed to pass notes back and forth. The CBP accepted a paper copy of Brinkema’s order and assured Booker the people who were being questioned would be released.
Overnight, CBP field operations officials spoke on the phone to avoid creating a paper trail now that the matter was in litigation, according to the person brief on the call, who wasn’t authorized to speak to reporters. Another person familiar with the process confirmed CBP issued new instructions overnight.
CBP agents at Dulles continued to block lawyers from talking to travelers into Sunday, so they were unable to determine if green card holders were being detained.
Rep. Connolly arrived on Sunday afternoon, joined by fellow Democrats Jamie Raskin and John Delaney of Maryland and Don Beyer of Virginia. Airport police blocked them from meeting with CBP officials.
Connolly said he concluded CBP was not complying with the order based on talking with the lawyers and passengers outside and by CBP’s refusal to meet with the congressmen.
“You’ve got an Orwellian order implemented with Kafkaesque incompetence leaving large parts of America in chaos and pandemonium, and lots of real people got hurt,” Raskin said. “We have a federal administration which operates through intimidation, fear and reprisal and essentially terrified a new bureaucracy under its control into disobeying court orders. That’s a terrible omen.”
Shaw McDermott, a Boston lawyer who chairs the board of the Metropolitan Washington Airports Authority, said CBP decides whom to allow on its premises and the airport officers were not in a position to enforce the court order. The local U.S. Marshals office declined to comment.
“What was going on back there that they didn’t want members of Congress to see?” said Rep. Bobby Scott (D-Va.), who arrived at Dulles later Sunday and was also denied entry.
Connolly, Raskin and Rep. Elijah Cummings, the ranking Democrat on the House Oversight Committee, sent Secretary Kelly a letter requesting records and answers on how the travel ban was implemented. Booker also sent a letter, as did Sens. Dick Durbin and Tammy Duckworth of Illinois.
In court papers Thursday, the Justice Department said no green card holders were deported or forced to withdraw after Brinkema’s order. The government lawyers argued her order did not specify physical access rather than phone calls and it would be unsafe to let the lawyers meet travelers in person.
At Friday’s hearing, Justice Department lawyer Erez Reuveni said travelers don’t have a right to an attorney while they’re being screened, and the government would object to any order sending lawyers into that area.
Herring, the Virginia attorney general, and the plaintiffs’ lawyers said the government’s approach wasn’t good enough.
“I don’t view it as full compliance, no,” said one of the attorneys, Simon Sandoval-Moshenberg of the Legal Aid Justice Center. “I would describe it as taking steps toward compliance.”
The government also appeared to be minimizing the Massachusetts court order in the Iranian scientist’s lawsuit. In an email submitted in court records, the Justice Department said a court order against detaining or removing people at Logan because of Trump’s travel ban did not mean the scientist, Samira Asgari, had to be allowed to board her flight to Boston from Switzerland.
“We do not read the Court’s order to require such action,” Justice Civil Division attorney Katie Shinners told Asgari’s lawyer on Tuesday afternoon.
The CBP email to airlines that was obtained by POLTICO said the agency would comply with the court order but didn’t explain how. The message, sent late last Sunday, said CBP will continue deporting people it deems unauthorized.
“Carriers are reminded that it is unlawful to bring into the United States any alien who does not have a valid passport and an unexpired visa,” Jalbert, the CBP Boston watch commander, wrote.
The German airline Lufthansa decided this week to let people from the seven countries affected by Trump’s ban board flights to Boston. But on Friday, U.S. District Judge Nathaniel Gorton decided not to renew the temporary restraining order against deporting people.
Josh Gerstein contributed reporting.
Trump officials slow-walked court orders on travel ban – Politico