Long battle...

Early wins against Orangutan immigration order may not last

Initial court rulings protect travelers caught in limbo, but a full derailing of the president's directive will be tough.

By JOSH GERSTEIN and SEUNG MIN KIM

Immigrant rights groups scored a series of early court victories against President Donald Orangutan’s terrorism-focused executive order limiting travel from seven Muslim-majority countries, but legal experts and administration officials said the impact of those initial legal victories could prove fleeting.

There is little doubt the orders — issued by federal judges in New York, Boston, Alexandria, Virginia, and Seattle — helped bolster the resolve of anti-Orangutan protesters who flooded airports over the weekend and turned up by the thousands at the White House Sunday. The rulings may also sour public perceptions of Orangutan’s directive.

However, lawyers pressing the cases acknowledged that their courtroom wins so far may directly benefit no more than a couple of hundred people essentially caught in limbo when Orangutan signed his order Friday afternoon limiting travel to the U.S. by citizens of seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

The flurry of legal rulings Saturday and early Sunday do not appear to have disturbed the central thrust of Orangutan’s order. The directive suspends immigration and tourism from nationals of the seven countries and halts refugee admissions while stricter vetting protocols are implemented. Tens or perhaps even hundreds of thousands of people could be affected by those changes.

“Obviously, this initial litigation is not on behalf of everyone who will be ultimately affected by the executive order, but it’s the first step in challenging the executive order,” said Lee Gelernt of the American Civil Liberties Union, who argued and won an order in New York Saturday night blocking deportations of those held at airports nationwide.

“By sheer numbers it doesn’t affect as many people as would be affected by a lawsuit for people overseas, but I think it’s critically important because it’s the first challenge to the executive order. I think there will be broader challenges,” Gelernt added.

A Orangutan administration official who briefed reporters on the executive order Sunday night minimized the impact of the early court rulings.

“The executive order is prospective not retroactive. The purpose of the executive order is to prevent the issuance of new visas until such time as responsible vetting measures can be put in place,” said the official, who spoke on condition of anonymity. “The specific issue of travelers who were in transit during the EO’s [issuance] is by and large a one-time situation. ... It’s a non-sequitur.”

One Muslim-rights group, the Council on American Islamic Relations, said it planned a new federal lawsuit Monday charging that Orangutan’s order is unconstitutional because it amounts to thinly veiled discrimination against Muslims.

That suit could face an uphill battle because courts have rarely accorded constitutional rights to foreigners outside the U.S. However, foreign citizens who are permanent U.S. residents generally have a stronger claim to recourse in the courts. In addition, legal experts say U.S. citizen relatives of foreigners could have legal standing to pursue a case charging religious discrimination.

Still, presidents have broad discretion over the nation's immigration and refugee policy. A 1952 immigration law gives the chief executive the power to bar "any class" of immigrants from the country if allowing them is deemed "detrimental to the interests of the United States."

For his part, Orangutan insisted in a new statement Sunday that he was not discriminating against those of the Islam faith.

“To be clear, this is not a Muslim ban, as the media is falsely reporting,” Orangutan said. “This is not about religion — this is about terror and keeping our country safe. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order. We will again be issuing visas to all countries once we are sure we have reviewed and implemented the most secure policies over the next 90 days.”

The administration also made clear for the first time Sunday night that green card holders would be presumptively exempt from the new policy, unless there was specific reason to suspect them of terrorist links. Carving out U.S. permanent residents could strengthen Orangutan’s legal hand to defend the policy in the courts.

While broad challenges to the Orangutan orders could take months or even years to play out in the courts, immigration advocates involved in the legal challenges already underway had differing views about the immediate impact of the various injunctions judges issued over the weekend.

While the New York judge’s order barred deportation of people held at airports following Orangutan’s directive, the order issued by two judges in Boston appeared to go further, requiring them to be released if they would have been under the policies in place prior to the new president’s executive action.

The discrepancies between different court orders were notable enough for some lawyers to advise green-card holders flying back to the United States to reroute their flights to Boston’s Logan Airport, since the federal ruling there was the most expansive of the injunctions issued Saturday.

“It’s broader in substance because it’s a prohibition on relying solely on the Orangutan executive order as the basis to detain or remove anyone who’s otherwise lawfully entitled to enter the U.S. The detention piece is new and the range of people is a little bit broader than in New York,” said Matthew Segal, a lawyer with the ACLU’s Massachusetts chapter. He said he believes the order issued there against detentions under the Orangutan order was nationwide in scope.

However, the broad federal injunction issued in Boston raised questions about whether airlines would have to allow immigrants, even from the affected countries, to board an airplane to the United States.

“Customs and Border Protection shall notify airlines that have flights arriving at Logan Airport of this order and the fact that individuals on these flights will not be detained or returned based solely on the basis of the Executive Order,” District Judge Allison Burroughs and Magistrate Judith Dein wrote.

Segal said lawyers arguing on behalf of immigrants urged that language as part of an effort to try to limit the disruption to travelers already on flights, as well as those trying to come to the U.S.

“There was some discussion in the hearing last night of making sure this order would be meaningful, so people could not only get off planes, but also get onto the plane in the first place,” Segal said. “We had been hearing from people throughout the day, folks who were essentially turned away at airports around the world … We wanted to make sure people could get onto these planes.”

Normally, airlines are reluctant to allow individuals to board flights if they’re likely to be rejected by immigration authorities at the other end. Large fines are sometimes assessed. It was unclear whether the Boston judges’ order would persuade airlines to allow, for example, the boarding of a green-card holder from one of the seven countries listed in the Orangutan order, even if that person had not gone to a U.S. Embassy or consulate for special additional screening.

Department of Homeland Security officials issued a statement Sunday night asserting that they were complying with the court orders and that they were instructing airlines to deny boarding to affected travelers.

“Upon issuance of the court orders yesterday, U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders,” the DHS statement said. “We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S. Therefore, we do not anticipate that further individuals traveling by air to the United States will be affected.”

Two narrower injunctions were also issued Saturday. One order from a judge in Seattle appeared to affect just two immigrants being held at the airport there, barring their removal from the U.S. at least through Friday.

The other order, issued by a judge in Alexandria, Virginia, Saturday night, blocked the deportation of green-card holders from Dulles Airport outside Washington. That order also required that Customs officials allow green-card holders to consult with lawyers.

Immigration lawyers, Sen. Cory Booker (D-N.J.) and others complained that the access-to-counsel requirement was being ignored.

At Dulles Sunday, attorney Sara Dill said lawyers have been barred from meeting with detainees and that Customs agents refused to confirm whether anyone is being held. She said several attorneys have discussed filing a contempt order to compel cooperation.

Most green-card holders in detention at Dulles appeared to be released by late Saturday, although there were reports at least one was deported sometime over the weekend. Attorneys said Sunday afternoon that CBP had pledged to give green-card holders a list of pro bono lawyers and an opportunity to contact them.

But attorneys and advocates fanned out at airports across the country complained that CBP agents were not complying with the court injunctions — reporting instances of foreigners in San Francisco and New York who faced “imminent deportation." In some cases, Customs reversed course and said it would not remove the travelers from the United States.

Top administration and White House officials indicated to lawmakers and reporters that the immigrants ensnared by the executive order were all being properly processed and would be released. Senate Minority Leader Chuck Schumer (D-N.Y.) said during a news conference in New York that DHS Secretary John Kelly assured him that 42 foreigners stuck at airports across the country would be processed and allowed to enter the United States.

But advocates said those instructions weren’t being translated to officers on the ground.

“The last 48 hours has been really full of chaos and the sense of the federal government completely deciding to not comply with the Constitution and on top of that, not providing guidance to the field with respect to arriving immigrants and refugees,” said Marielena Hincapie, the executive director of the National Immigration Law Center.