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THE ELECTRONIC INTIFADA
Are US Marshals refusing to enforce court orders against Trump's Muslim ban?
Charlotte Silver 1 February 2017
Protesters rally against President Trump's executive order barring entry to
nationals from seven Muslim-majority countries, at Los Angeles International
Airport, on 28 January. (Cindy Chu)
Immigration attorneys in Southern California have told The Electronic
Intifada that the US Marshals Service is failing to enforce federal court
orders against the Customs and Border Protection agency at LAX, Los Angeles
International Airport.
The development comes after several days of reports that Customs and Border
Protection has been violating nationwide court orders suspending key
provisions of US President Donald Trump's executive order, which many are
calling a Muslim ban.
This represents a potential breakdown in the division of powers: the US
Marshals Service, according to the Judiciary Act of 1789, is obligated to
serve as the enforcement arm of the federal courts.
After Trump signed the executive order last Friday, closing the border to
refugees and barring entry to potentially hundreds of thousands of people
with valid US visas and permanent resident cards from seven Muslim-majority
countries, civil rights attorneys and state governments around the country
moved to file lawsuits against the measure.
They argue it violates constitutional guarantees of due process and equal
protection under the law.
On Saturday night, as thousands of people gathered to protest the executive
order at airports across the country, a federal judge in Brooklyn issued a
nationwide partial stay that temporarily bars deportation of persons with a
valid US visa.
The next day, a Boston court handed down a more expansive stay, ordering
that no one who is legally authorized to enter the US be detained or removed
until 4 February.
Confusing statement
But over the weekend, there were reports from around the country that
officers from Customs and Border Protection, the Department of Homeland
Security agency that inspects all international travelers at ports of entry,
were failing to comply with court orders.
On Tuesday, CBP published a statement that seems to add more confusion. It
claims to have taken immediate steps to comply with the court orders, while
also implementing Trump's executive order.
It also states that the entry ban could still apply to green card holders -
legal permanent residents - from the seven countries, contradicting previous
statements by the White House that this group would be exempt.
CBP said that "lawful permanent resident status will be a dispositive factor
in our case-by-case determinations" of who can enter, indicating that the
agency still asserted the authority to deny entry to green card holders.
Though the statement includes a few statistics on how many waivers CBP has
granted travelers with green cards and visas, it does not reveal the number
of people it has detained or deported.
With such little transparency, only fragments of what is happening at ports
of entry are reaching the public.
At LAX, at least one foreign national with authorization to enter the US was
deported, in violation of the court orders.
The Intercept reports that when two California members of Congress, Rep.
Judy Chu and Rep. Nanette Barragan, came to LAX and asked to speak with CBP
officials, they were refused.
When the CBP officials were asked who they were reporting to, they said,
"Donald J. Trump," and hung up, according to The Intercept.
The American Civil Liberties Union of Southern California and the law office
of Stacy Tolchin petitioned the court on behalf of a man who was denied
entry despite having a valid visa. After the petition was filed, he was
deported on a plane to Dubai.
On Sunday, 29 January, Judge Dolly Gee ordered the government to allow him
to return to the US, and set a follow-up hearing for 10 February.
Refusing to accept court order
But the border officers at LAX had already defied two court orders, and
immigration lawyers feared they would defy Judge Gee's order as well, so a
group of attorneys began pressuring the US Marshals office in Southern
California to enforce the court orders.
The New York court specifically ordered the US Marshals to enforce its
ruling.
On Monday morning, a group of immigration lawyers went to the US Marshals
office to serve them with the court order instructing them to ensure CBP and
federal agencies comply with the judicial decisions.
Laura Riley, one of the attorneys there, told The Electronic Intifada that
it is only necessary to invoke the US Marshals when there's evidence of
noncompliance.
But the US Marshal's office informed the team that it had "been instructed
by its Office of the General Counsel to await instruction from the US
Attorney's office."
The US Attorney is a federal prosecutor who answers to the Department of
Justice - the executive branch.
Faith Nouri, one of the lawyers coordinating the effort, told The Electronic
Intifada that she then contacted a US Attorney in Southern California who
agreed to accept the court order on behalf of the US Marshals.
Nouri kept the identity of the US Attorney anonymous because she does not
want him to face repercussions.
Nouri asked Riley and her colleagues to serve the unnamed US Attorney the
court order.
When Riley arrived, she said the US Attorney was poised to accept the court
order, "But in the middle of our conversation, the person we were talking to
was called away."
The US Attorney came back and informed Riley that he could no longer accept
the court order.
Nouri said that the US Attorney sent a follow-up email to her, informing her
that he would no longer be able to assist.
The US Attorney did not say who had instructed the office not to accept the
court orders.
Starting to comply?
"The underlying, real issue here is that these government agencies are not
complying with the judicial branch," Riley told The Electronic Intifada.
"Nor are they being transparent with attorneys, so we don't know who is
being detained or removed."
Riley said she cannot say if anyone else has been deported since Judge Gee's
decision.
Nouri was subsequently advised by the US Marshals office to contact the
Department of Justice.
She was able to speak with a person who has been assigned to deal with CBP.
Nouri says civil servants, like US Marshals, are being "very cautious," and
they "feel that they cannot do their jobs, because they are getting pressure
from higher up."
Trump summarily fired Acting US Attorney General Sally Yates, the top
official at the Department of Justice, when she announced earlier this week
that she would not defend his executive order in court.
A US Marshals spokesperson told The Electronic Intifada on Wednesday that
marshals could not take any action based on the court orders issued over the
weekend because they were not specific enough.
According to the spokesperson, the US Marshals cannot determine if the court
orders have been violated, and must await further instructions from a judge.
There are two status hearings for the New York and Boston cases scheduled
for Thursday and Friday. The spokesperson said these hearings should
determine if there have been violations, and how the marshals might assist
in their implementation.
The spokesperson added that there was no reason to serve the US Marshals
with the court order - as the attorneys in Southern California attempted to
do - because the Department of Homeland Security had already published a
statement saying agents would comply.
The 29 January statement says CBP would enforce Trump's executive order and
comply with the courts. In subsequent statements, Secretary of Homeland
Security John Kelly claimed CBP immediately began taking steps to act in
compliance.
A spokesperson for the Department of Justice told The Electronic Intifada on
Wednesday that it had "notified and provided guidance" to CBP and the US
Marshals with regards to the Brooklyn and Boston court orders.
"Dangerous turn"
There is no clear precedent for the federal government and its agencies
defying a judge's order. But in such cases there is, in theory, an
enforcement mechanism through the US Marshals.
In a 30 January Slate article examining the implications of federal agencies
defying a court order, Ari Ezra Waldman, the director of the Innovation
Center for Law and Technology at New York Law School, imagines the US
Marshals could be pitted against CBP.
"This is what sets us up for a darker, dangerous turn," he writes. But so
far, the US Marshals appear to be allowing CBP to flout the courts.
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Are US Marshals refusing to enforce court orders against Trump's Muslim ban?
Charlotte Silver 1 February 2017
Protesters rally against President Trump's executive order barring entry to
nationals from seven Muslim-majority countries, at Los Angeles International
Airport, on 28 January. (Cindy Chu)
Immigration attorneys in Southern California have told The Electronic
Intifada that the US Marshals Service is failing to enforce federal court
orders against the Customs and Border Protection agency at LAX, Los Angeles
International Airport.
The development comes after several days of reports that Customs and Border
Protection has been violating nationwide court orders suspending key
provisions of US President Donald Trump's executive order, which many are
calling a Muslim ban.
This represents a potential breakdown in the division of powers: the US
Marshals Service, according to the Judiciary Act of 1789, is obligated to
serve as the enforcement arm of the federal courts.
After Trump signed the executive order last Friday, closing the border to
refugees and barring entry to potentially hundreds of thousands of people
with valid US visas and permanent resident cards from seven Muslim-majority
countries, civil rights attorneys and state governments around the country
moved to file lawsuits against the measure.
They argue it violates constitutional guarantees of due process and equal
protection under the law.
On Saturday night, as thousands of people gathered to protest the executive
order at airports across the country, a federal judge in Brooklyn issued a
nationwide partial stay that temporarily bars deportation of persons with a
valid US visa.
The next day, a Boston court handed down a more expansive stay, ordering
that no one who is legally authorized to enter the US be detained or removed
until 4 February.
Confusing statement
But over the weekend, there were reports from around the country that
officers from Customs and Border Protection, the Department of Homeland
Security agency that inspects all international travelers at ports of entry,
were failing to comply with court orders.
On Tuesday, CBP published a statement that seems to add more confusion. It
claims to have taken immediate steps to comply with the court orders, while
also implementing Trump's executive order.
It also states that the entry ban could still apply to green card holders -
legal permanent residents - from the seven countries, contradicting previous
statements by the White House that this group would be exempt.
CBP said that "lawful permanent resident status will be a dispositive factor
in our case-by-case determinations" of who can enter, indicating that the
agency still asserted the authority to deny entry to green card holders.
Though the statement includes a few statistics on how many waivers CBP has
granted travelers with green cards and visas, it does not reveal the number
of people it has detained or deported.
With such little transparency, only fragments of what is happening at ports
of entry are reaching the public.
At LAX, at least one foreign national with authorization to enter the US was
deported, in violation of the court orders.
The Intercept reports that when two California members of Congress, Rep.
Judy Chu and Rep. Nanette Barragan, came to LAX and asked to speak with CBP
officials, they were refused.
When the CBP officials were asked who they were reporting to, they said,
"Donald J. Trump," and hung up, according to The Intercept.
The American Civil Liberties Union of Southern California and the law office
of Stacy Tolchin petitioned the court on behalf of a man who was denied
entry despite having a valid visa. After the petition was filed, he was
deported on a plane to Dubai.
On Sunday, 29 January, Judge Dolly Gee ordered the government to allow him
to return to the US, and set a follow-up hearing for 10 February.
Refusing to accept court order
But the border officers at LAX had already defied two court orders, and
immigration lawyers feared they would defy Judge Gee's order as well, so a
group of attorneys began pressuring the US Marshals office in Southern
California to enforce the court orders.
The New York court specifically ordered the US Marshals to enforce its
ruling.
On Monday morning, a group of immigration lawyers went to the US Marshals
office to serve them with the court order instructing them to ensure CBP and
federal agencies comply with the judicial decisions.
Laura Riley, one of the attorneys there, told The Electronic Intifada that
it is only necessary to invoke the US Marshals when there's evidence of
noncompliance.
But the US Marshal's office informed the team that it had "been instructed
by its Office of the General Counsel to await instruction from the US
Attorney's office."
The US Attorney is a federal prosecutor who answers to the Department of
Justice - the executive branch.
Faith Nouri, one of the lawyers coordinating the effort, told The Electronic
Intifada that she then contacted a US Attorney in Southern California who
agreed to accept the court order on behalf of the US Marshals.
Nouri kept the identity of the US Attorney anonymous because she does not
want him to face repercussions.
Nouri asked Riley and her colleagues to serve the unnamed US Attorney the
court order.
When Riley arrived, she said the US Attorney was poised to accept the court
order, "But in the middle of our conversation, the person we were talking to
was called away."
The US Attorney came back and informed Riley that he could no longer accept
the court order.
Nouri said that the US Attorney sent a follow-up email to her, informing her
that he would no longer be able to assist.
The US Attorney did not say who had instructed the office not to accept the
court orders.
Starting to comply?
"The underlying, real issue here is that these government agencies are not
complying with the judicial branch," Riley told The Electronic Intifada.
"Nor are they being transparent with attorneys, so we don't know who is
being detained or removed."
Riley said she cannot say if anyone else has been deported since Judge Gee's
decision.
Nouri was subsequently advised by the US Marshals office to contact the
Department of Justice.
She was able to speak with a person who has been assigned to deal with CBP.
Nouri says civil servants, like US Marshals, are being "very cautious," and
they "feel that they cannot do their jobs, because they are getting pressure
from higher up."
Trump summarily fired Acting US Attorney General Sally Yates, the top
official at the Department of Justice, when she announced earlier this week
that she would not defend his executive order in court.
A US Marshals spokesperson told The Electronic Intifada on Wednesday that
marshals could not take any action based on the court orders issued over the
weekend because they were not specific enough.
According to the spokesperson, the US Marshals cannot determine if the court
orders have been violated, and must await further instructions from a judge.
There are two status hearings for the New York and Boston cases scheduled
for Thursday and Friday. The spokesperson said these hearings should
determine if there have been violations, and how the marshals might assist
in their implementation.
The spokesperson added that there was no reason to serve the US Marshals
with the court order - as the attorneys in Southern California attempted to
do - because the Department of Homeland Security had already published a
statement saying agents would comply.
The 29 January statement says CBP would enforce Trump's executive order and
comply with the courts. In subsequent statements, Secretary of Homeland
Security John Kelly claimed CBP immediately began taking steps to act in
compliance.
A spokesperson for the Department of Justice told The Electronic Intifada on
Wednesday that it had "notified and provided guidance" to CBP and the US
Marshals with regards to the Brooklyn and Boston court orders.
"Dangerous turn"
There is no clear precedent for the federal government and its agencies
defying a judge's order. But in such cases there is, in theory, an
enforcement mechanism through the US Marshals.
In a 30 January Slate article examining the implications of federal agencies
defying a court order, Ari Ezra Waldman, the director of the Innovation
Center for Law and Technology at New York Law School, imagines the US
Marshals could be pitted against CBP.
"This is what sets us up for a darker, dangerous turn," he writes. But so
far, the US Marshals appear to be allowing CBP to flout the courts.