Explainer on Officials in Contempt of Court Orders on #MuslimBan–Tracking All the Cases

In recent days, much of the focus has been on Washington State’s challenge to Trump’s Muslim Ban, which resulted in a nationwide stay upheld by the Ninth Circuit (see here for Marty Lederman’s analysis). DHS and the State Department have stated that they are complying with the judge’s order, even though there remains considerable confusion as to what it actually means for people whose visas were already revoked.

At the same time, lawyers faced major challenges in getting border authorities to comply with earlier rulings staying parts of the ban. On 28 January, attorneys filed an emergency application for a temporary restraining order on behalf of two the Aziz brothers, two Yemeni nationals who hold U.S. green cards, and 60 additional lawful permanent residents detained at Dulles, all of whom were barred from coming into the country and denied access to attorneys. Judge Brinkema of the Eastern District of Virginia granted the application. The authorities were required to “permit lawyers access to all legal permanent residents being detained at Dulles International Airport” and forbidden from removing lawful permanent residents from Dulles for seven days.

But the attorneys waiting at Dulles were not able to speak with their clients and others held at the airport. While DHS Secretary Kelly promised that the agency would comply with all court orders, according to Politico, “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.” The first weekend after the ban was issued, several members of Congress who went to Dulles were not able to get clarification about the status of those detained there, but were mostly unable to make any progress. In addition, various news outlets reported and plaintiffs’ amended complaint alleged that the Aziz brothers and others were coerced into signing documents that may have waived their visa rights. I have also heard many similar stories from attorneys representing those affected by the ban.

The Commonwealth of Virginia moved for an order to show cause why Customs authorities should not be held in contempt for deliberately preventing lawyers from speaking with detained green card holders. They also sought to hold government officials in contempt for the way they handled travelers from the seven banned countries over the weekend.

At a hearing on February 3, Judge Brinkema denied the motion without prejudice, saying that she did not have enough information to make a determination. The Aziz brothers themselves had been put on a plane back to Yemen, and the judge seemed satisfied that the government was making efforts to bring them back. Judge Brinkema extended the restraining order for another week and required the government to provide a list of Virginia residents, both with green cards and visa holders, who have been denied entry or removed since the executive order was issued. She promised to also expand the order on attorney access, although that order is not yet available.

Another case involving potential failure to follow court directives is the lawsuit filed under seal on January 31 in Los Angeles federal court on behalf of 28 Yemeni-Americans, including United States citizens living here and family members who remained behind in Yemen but had received immigrant visas to come to the U.S. The same day, Judge Birotte granted a temporary restraining order, requiring the federal government to allow plaintiffs to enter the country. Birotte directed the State Department “to return plaintiffs their passports containing validly issued immigrant visas so that plaintiffs may travel to the United States on said visas.” The Sacramento Bee reports, however, that U.S. authorities have not returned plaintiffs’ passports and their attorney plans to file a contempt motion on February 3. As of this writing, no papers are available on the motion.

It is not clear whether line officers’ apparent failure to comply with court orders is the result of a deliberate decision or the result of the confusion due to the hasty execution of a poorly thought out order. Indeed, more than two weeks after the executive order was issued, it does not appear that the government has even produced a list of those detained at U.S. airports (although they have stated at various times that 109 persons were detained), not to mention the far larger number who – like the plaintiffs in Mohammed v. Trump – were unable to travel (the government first stated that 100,000 people were effected, but later revised this estimate to 60,000). The ACLU has filed freedom of information law requests across the country in order to obtain information on whether the agencies implementing the ban are complying with court orders.

 

[Editors note: Be sure to read Ambassador (ret.) Keith Harper’s article, “The Importance of Judicial Contempt Proceedings in a Trump Era.”]

Image: David McNew/Getty

  

About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).