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Friday, May 26, 2017

Traveling in the Trump Era

Written by  Linda A. Dominguez

Or learning to love your immigration attorney!

Traveling by air since January 20th, 2017 has become complicated for many noncitizens. The Executive Orders issued by President Donald J. Trump have caused heartache and fear to run rampant in immigrant communities. The first Executive Order (EO), dated January 27th, intended to prevent anyone who was from seven mostly Muslim countries entering the U.S. Those countries are Iraq, Somalia, Syria, Yemen, Sudan, Iran, and Libya. It also ended indefinitely the ability of Syrian refugees from entering the U.S., in spite of years-long background checks to ensure that anyone entering was not a radical jihadist. The travel ban extended to persons with “green cards,” as well as those with visitor or student visas, and those who had dual citizenship with one of the seven listed countries.

The failure of the White House to consult with the Department of Homeland Security and the Department of State resulted in widespread panic and chaos, among would-be visitors as well as government officials trying to enforce the EO. Luckily, several nonprofit attorney organizations jumped quickly to file habeas corpus petitions before U.S. District Courts across the country to stop the enforcement of the EO on arriving travelers. The first nationwide temporary restraining order (“TRO”) was issued on February 3rd by a federal judge in Washington State.

However, many people with valid visas were refused entry into the U.S. Some were detained for hours – without access to food, attorneys, or family members already living in the U.S. One example is that of Juan Garcia Mosqueda, an Argentinian who was living legally in New York City and owns Chamber, an art gallery at 515 West 23rd Street. He arrived at JFK airport on February 24th, after a visit to his family in Argentina. Mr. Mosqueda was detained for 14 hours by Customs and Border Patrol (“CBP”) inside of the airport. He was denied access to food or water. He was taken to the bathroom under armed guard. He was denied access to his attorney. CBP officers lied to him and said that attorneys were not permitted at airports or border crossings. At the end of 14 grueling hours of detention, Mr. Mosqueda was escorted under armed guard to an airplane going to Buenos Aires.

Another even more troubling case was that of a woman born in the Sudan who is a lawful permanent U.S. resident (green card holder). She was returning to the U.S. early in the morning of January 27th with her 11-month-old daughter, a United States citizen. The CBP separated them for hours as they interrogated the mother, in spite of the fact that the child is breastfeeding and needed nourishment, as well as care from her mother. The father of the child was frantic in the airport, trying to get information from CBP officers who told him nothing. Attorneys who had gathered at the Dallas / Fort Worth Airport scrambled to get a TRO from the federal court and ran back with it in hand to secure the release of both mother and child from CBP custody.

At Philadelphia airport, on January 28th, the refugee families of two Syrian brothers were denied entry because of the travel ban, after spending hours in CBP detention. Parents, with their minor children, were interrogated for hours and eventually put on a flight back to the Middle East. Their family members who had naturalized and were waiting for them, were told nothing by CBP until after the returning flight was off the ground. Those refugees had valid visas in their hands, which under normal circumstances, would have allowed them to enter the U.S.without problems.

The second EO was signed by President Trump on March 6th. This was an attempt to make the Muslim travel ban easier to swallow but it failed to do so. Iraq was removed from the list of countries and green card holders and dual citizens were eliminated from the travel ban. However, the language was still clearly targeting the religion of Islam as the basis for refusing entry. The lawsuits filed in January and February across the country were amended to include this second EO. A federal judge in Hawaii issued a nationwide TRO against this second EO on March 15th, and an indefinite preliminary injunction on March 29th. The Ninth Circuit Court of Appeals heard oral argument on the Government appeal of that case on May 15th, which was videotaped and released to the public. This access to a federal court hearing is unprecedented.

The federal court in Baltimore issued its own TRO on March 15th. The government appeal of that case was heard by a 13-judge en banc panel of the Fourth Circuit Court of Appeals on May 8th. Usually, initial oral arguments are heard by a three-judge panel and, if a motion is filed after an unfavorable decision and the motion is granted, the Fourth Circuit will hold an en banc hearing. It is very rare to have 13 of the 15 active judges hear an appeal at an initial oral argument.

Clearly, one of the lawsuits will end up before the U.S. Supreme Court, which will have to decide whether a president has the authority to issue an EO that discriminates against the people of one religion in violation of the Equal Protection Clause of the Constitution, as well as federal statutes.

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