News reports have followed the short saga of the Immigration Executive Order issued on Jan. 27th by President Trump, but the legal saga culminating in this morning’s hearing (Friday, Feb. 3rd) before Judge Brinkema is remarkable, even by EDVA standards.
Earlier this morning, the first confrontation over the Executive Order unfolded in Judge Brinkema 7th Floor courtroom in Aziz at al. v. Trump, Case No. 1:17cv116—LMB/TCB. As filed, the matter addressed the detainment of two brothers, both Green Card holders, traveling through Dulles Airport on their way to meet their father, who lives in Flint, Michigan. The plight of the Aziz brothers appears now to be resolved, but the Commonwealth of Virginia has sought to intervene to push the broader issues with the Executive Order.
The issues before Judge Brinkema included the original parties’ Motion for Abeyance, Virginia’s Intervention Motion, the Motion of a second set of Plaintiffs to Intervene, and a Rule to Show Cause. The Minute Order shows that the judge granted both Motions to Intervene and the original parties’ Motion to Hold Claims in Abeyance. The judge denied, however, the Motion for the Rule to Show Cause.
The case thus continues with the Commonwealth of Virginia seemingly in the driver’s seat on the Plaintiffs’ side.
Friday Afternoon Executive Order
President Trump signed his Executive Order at about 4:30 PM on Friday, January 27, 2017. As of the time of signing, flights from the Middle East heading to various US international airports were already in the air with arrivals beginning on Saturday morning. This meant that a number of passengers from the seven foreign nations identified in the Executive Order were flying into an uncertain situation. These passengers held Green Cards and valid student/work visas – without this advanced-entry approval, they never would have been permitted to board the international flights in the first place.
Saturday Morning—Incoming Flights
The first of the affected flights landed at JFK Airport early on Saturday, January 28th. About 45 minutes later the first affected flight landed at Dulles Airport. On board the Dulles fight were the two Aziz brothers, Yemeni nationals who were granted Green Cards because their father is a US citizen. The brothers were connecting through Dulles on the way to Michigan where their father was planning to meet them.
The Aziz brothers and as many as 60 other arriving passengers were detained by the US Customs and Border Protection (CBP) and blocked from leaving a designated area at Dulles Airport. CBP is an agency within the US Department of Homeland Security (DHS).
Habeas Petition and TRO/Injunction
Apparently anticipating a showdown, a group of immigration lawyers gathered at Dulles Airport. By questioning passengers who were not detained, the lawyers confirmed that the Aziz brothers and others were in fact detained. There was also concern that this group of detainees were being questioned by CBP officers and possible arrangements had been made to return the detainees to the countries from which they came.
The lawyers sought access to their new clients, but the CBP denied all access.
Late that afternoon, a Petition for Writ of Habeas Corpus and Complaint for an Injunction were filed in the Alexandria federal court. The filing sought a targeted TRO: first, the Petitioners asked that the attorneys be granted access to their clients, and second, that for a minimum of at least seven days the detainees not be removed from the United States.
At about 9:30 PM on Saturday night, Judge Brinkema signed a two-point Temporary Restraining Order. The Order requires that “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.” The TRO continues that “respondents are forbidden from removing petitioners–lawful permanent residents at Dulles International Airport–for a period of 7 days from the issuance of this Order.”
CBPs Saturday Night Defiance of the TRO
Copies of Judge Brinkema’s Order were delivered to the lead CBP officers at Dulles Airport. The CBP officers apparently defied the federal court order–the lawyers who were to have access to their clients were again denied that access. It also is the case that CBP put several, and perhaps many, of the detainees on return flights during the day on Saturday.
Sunday—Congressional Visitors to Dulles
On Sunday, January 29th, several members of Congress from the DC area, including Rep. Don Beyer, appeared at Dulles. Beyer, in an affidavit later filed with the federal court, reported that “to my knowledge, not a single attorney was permitted access to any detained traveler. My congressional colleagues and I were also denied access to detainees.” Beyer concluded in his affidavit that “CBP’s continued enforcement of the Executive Order amounted to a constitutional crisis: four members of Congress asked CBP officials to enforce a federal court order and we were all turned away.”
Commonwealth of Virginia’s Intervention
On Tuesday, the Commonwealth of Virginia sought to intervene through its Attorney General, Mark Herring. The next morning, Virginia filed with the federal court a Motion for a Rule to Show Cause, essentially requesting that the recipients of the TRO Order be required to explain their defiance or be held in contempt of court. The Virginia pleadings sought a hearing on Friday, February 3rd. Virginia additionally moved for a Preliminary Injunction to enjoin enforcement of Section 3(c) of the Executive Order, the broader section of the Executive Order. Judge Brinkema set the Virginia Intervention Motion and the Motion for the Rule to Show Cause for a hearing this morning (Feb. 3rd).
On Wednesday, the U.S. Attorney entered an appearance. Not long afterwards, the original parties filed a Joint Request to Hold Claims in Abeyance. The pleading states that the parties “have a signed agreement to resolve Petitioner’s claims against Defendants.” For this reason, the parties asked that Petitioner’s claims in this case be held in abeyance.
Thursday’s Pleadings Avalanche
The pleadings continued to pour in on Thursday—the PACER Docket Sheet lists twelve entries.
Virginia offered an additional Declaration in support of its motion for a Rule to Show Cause. Virginia also filed its Opposition to the Joint Motion to Hold Claims in Abeyance. The Virginia Brief argues that “the Government’s conduct suggests that it may be maneuvering to delay the case in order to avoid having to account for whether it complied with this Court’s Temporary Restraining Order.” The argument continues, “the Government has been holding press conferences claiming that it promptly complied with this Court’s TRO. It has time to explain why it appears that not even a single LPR [Green Card or student/work visa holder] detained at Dulles has been allowed to see a lawyer.”
The Virginia position is that while the claims of the Aziz brothers appear to be on their way to resolution, the issues regarding the constitutionality of the Executive Order still must be adjudicated. Then, a second group of individual plaintiffs filed their own Motion to Intervene.
Just before 7 PM, Virginia filed its Brief in Support of Preliminary Injunction. The US Attorney then filed its Opposition to Virginia’s Intervention and Opposition to the Rule.
Friday Morning Hearing
The Court’s schedule for this morning’s hearing showed Aziz v. Trump as the only remaining matter on Judge Brinkema’s 10AM docket. Local authorities warned of traffic backups in the vicinity of the Alexandria federal courthouse.
The Court’s Minute Order confirms a 64-minute hearing and provides a cryptic summary of the rulings. Judge Brinkema granted the joint Motion to Hold Matters in Abeyance—this perhaps resolves the Aziz brothers claims. But the judge granted Intervention to the Commonwealth of Virginia and to the second Plaintiffs (though the Motion for a Rule to Show Cause was denied). The Preliminary Injunction Hearing remains on the calendar for next Friday, February 10th.
A wild week in the Rocket Docket, and with the potential for more to come next week.