Lawyering in Dulles for Detainees: A first-hand account

>Flickr/Yossi Gurvitz

Lawyering in Dulles for Detainees: A first-hand account

President Donald Trump signed an executive order Friday barring entry to the U.S. to people from seven countries, including U.S. permanent residents. Enforcement of this new policy became erratic last night and today at airports, where those who fall under the order landed and were immediately detained by the U.S. Customs and Border Protection. At Washington Dulles International Airport, lawyers and protesters converged and the situation immediately became chaotic.

The Islamic Monthly spoke to Hassan Ahmad, one of the lawyers who has been on the scene at the Dulles airport.

*Editor’s note: This interview has been lightly edited for clarity.

The Islamic Monthly: You are a lawyer who was on the ground last night and today at the Washington Dulles International Airport. Can you tell us precisely what it is that you are doing there?

Hassan Ahmad: I’m an immigration attorney and I’ve been practicing for the past 15 years. When I read the executive order signed by President Trump earlier this week, I was shocked; I had never seen anything so regressive in such a short period of time in my entire career. So when I saw there were rapid response teams being set up to provide legal representation at points of entry, I immediately signed up and went down to Dulles Airport yesterday until 2 in the morning.

TIM: Did they let you talk to any of the detainees? Can you give me a sense of what happened to them?

HA: Short answer is no, they did not. There were other lawyers off-site who swiftly filed for a temporary restraining order or injunctive release to allow attorneys to be able to access their clients.

Access to counsel is a fundamental right and if these people were in fact being detained, they have a right to see a lawyer. Customs and Border Protection (CBP) through Dulles airport refused to provide that access, refused to provide any information whatsoever. The way we were forced to represent people were through family members who were able to pass text messages and sometimes calls to the people in secondary inspection, but not detainees. There was some limited, very clumsy type of representation we could do during the day that still helped, I think. But it still was not meaningful access to counsel, especially for those who were detained.

For those of who might not know, people who enter the United States and present themselves for inspection are put into different categories. There’s primary and secondary. People may well be detained if CBP makes the determination that they are inadmissible and [should be processed] for any expedited removal or they can claim asylum and be processed for a credible fear interview. CBP has long taken the position that people who are in primary and secondary inspection have no right to counsel once they are detained. What this means in the context of the president’s executive order is really hard to say, but they took the position that these people were in secondary inspection and therefore there was no access to counsel and that’s it. So they blocked us, they blocked us.

That information did not sit well with Federal Judge Leonie Brinkema in the Eastern District of Virginia and she ordered about, I think, about 7 or 8 p.m., granting a temporary restraining [order] mandating all of the detainees at Washington Dulles International Airport be granted access to the volunteer lawyers who were at Washington Dulles International Airport. And it was a simple, plain English order.

TIM: Those in first and secondary inspection were also granted?

HA: She said “detainees.” What that means in this context is perhaps little, but that’s beside the point because we were not even granted access to the detainees. I believe that it was a violation of the federal court order. They told us they were refusing to do it. I spoke personally with the director of airport security, who said on orders from CBP, that’s who they take their orders from. [Even though] they were provided copies of the signed temporary restraining order mandating that they open the doors, they refused to do so. That was the case.

Senator Cory Booker [of New Jersey] showed up around 11, 11:30 p.m. and went back and tried to force them to grant us access. At that point, they had released most, if not all, of the people in secondary inspection and told Senator Booker that no one had been transported for deportation. When people are placed into deportation proceedings or removal proceedings, they are usually transported down to Farmville, that’s the most common detention center here in Virginia. CBP informed Senator Booker no one had been transported. We’re waiting to verify that. I don’t want to speculate as to whether someone was in fact transported, which would make that a misrepresentation to Senator Booker.

We are obviously going to wait and find out the stories, but it’s kind of sad to say that, at the very least, if there were people who were transported to Farmville, at least they will have access to counsel there. That’s where things stood at about 2 a.m. last night. Everybody left.

I will say on a positive note that, although the administration and many media outlets reported that the executive order would touch not just non-immigrants who hold tourist visas and student visas, but also the green cards of those from one of the seven banned countries. It seemed that although they were subjected to lengthy delays and perhaps severe questioning — we’re trying to get more details about that — but they were able to be processed through. I am not aware of a permanent resident, green card holder, who entered through Dulles Airport who was turned away. Now they may have been detained — gonna find that out — but the point is they were not put on a plane and sent back. I did not hear about that happening.

TIM: So even green card holders from Syria? There are a lot of Syrians here who have green cards and are afraid of going anywhere, even to Canada, due to fears of being turned away when they come back.

HA: As an immigration lawyer, I would advise them not to leave the country. If they have green cards and they are here, and especially if they are from one of the banned countries, they should not leave. If they have permanent residence, they should not leave.

TIM: I’m also hearing from folks that those who were detained, the officials were looking at their cellphones, looking at things that can tell them about their political views. Have you heard that?

HA: I did hear that, but I don’t have any independent verification. A lot of the people I was representing yesterday, when they got out, they really wanted to get home understandably. But I think in the coming days and weeks, we’re going to find out more about the experience of people as they were being inspected and questioned when they came into the United States, and I think this will come out.

TIM: You were not able to speak to any of the detainees who were able to come out?

HA: The only people I represented were people who were in secondary inspection, and we were not permitted access to any of the detainees.

TIM: Can you tell us a specific story of someone and what they experienced?

HA: One of the people I represented was a 71-year-old Iranian gentleman and his wife. They were flying in from Iran. He has a heart condition, so traveling was obviously difficult for him. He was coming back into the United States after some time. He said CBP would consider him in a category that would send him back; given his frail health, the fact that he was in a wheelchair and [would have to] endure a long international flight, his traveling back to Iran would have been a threat to his health, it would have been very dangerous.

So we reached out to the senator and I was able to talk to Collin Davenport, who is one of the aides at [Representative] Gerry Connolly’s office here in Virginia. He was very responsive, not sure exactly what he did, but shortly thereafter, the news of the temporary restraining order came out. This was about 7, 8’oclock in the evening. It took [until] around 9 o’clock or so, but they finally processed him and admitted him into the United States after his flight had landed at 3:34 p.m. The only message we were able to get to him was because the person, an airport employee who was pushing his wheelchair allowed him to use his phone once. And that was the only time we were able to speak with him and get a message to him.

His family member who was here was able to give us other information that we used to contact congressmen. At that point, we had nothing to file, we could not talk to our client, we were blocked, stonewalled. Alhumdullilah, he was release and I hope he’s doing well.

We represented another family earlier yesterday. This was a mother, a father and two young children who had come in from Iraq. The entire family had gotten their green cards based on the Special Immigrant Visa Program, which is a small number of visas given to translators who worked in the U.S. Army in Iraq and Afghanistan. He got his green card that way and he had it for several years. It took them four-and-a-half hours to be process, but I’m happy to report they were eventually admitted and allowed to enter without too much fanfare.

TIM: There are people on social media sending out advice on what to do when they are in the search process or detained: Don’t talk to a lawyer, don’t sign anything. What do you advise for someone who is pulled to the side? What do you advise immigrants to do exactly?

HA: First thing to do is demand a hearing before an immigration judge. Do not sign anything. There are some papers they say is okay to sign and that very well may be the case, but anything they need to process, they can do without the person’s signature. So we advise not to sign anything. One of the things I’m afraid of is pressure by CBP to get permanent residents to voluntarily relinquish their green cards, and there’s a form, in the past I’ve seen it. I have not heard reports of this happening in the wake of the executive order, but it’s good to be proactive and let people know that this is something that may occur. It’s Form I-407, I would definitely advise people not to sign that. Once they do that, we can’t help them.

Green card holders who have asked for a hearing, though they may have to go through the detention to get to that hearing, they have the best shot at, not only getting out of detention themselves, but also to challenge the constitutional basis the executive order itself, at least as it’s applied to permanent residents.

The best is to be prepared beforehand. If people are still overseas, they should contact a lawyer as quickly as possible, a lawyer who can advise them in real time. Because here’s the thing, this is the presidency of the tweet, all the advanced notice we are going to get when President Trump decides to put a country on the banned list, we are going to get all these advanced notices as a tweet.

TIM: The ACLU achieved a huge victory. Can you explain what that was about and why are people still being detained?

HA: It is a huge victory, but it’s a small step in the whole battle here. The stay that was issued in Brooklyn, New York, prevents the deportation removal of people pursuant to the 10th of the executive order, but it does not specifically prevent their detention. These people may well be detained and then go through the normal process of getting out, but it does not necessarily mean they can’t be detained upon entry. There are actually four orders I am aware of, I’ve only read two or three of them. There was of course the TRO in Virginia that has to do with access to counsel and also a blanket prohibition on removal for the next seven days.

There was another one done by a colleague in the district of Massachusetts that actually prohibits detention and removal. There might have been one in Seattle. But there are four orders, four federal judges that immediately ruled. These are temporary injunctions, but the standard for temporary injunction is that the person bringing the lawsuit must show there’s a likelihood they would win in full-blown trial, so it’s a pretty tough standard and all four of these federal judges in four different districts across the country found the same thing: that this [executive] order, in a full trial, would be found unconstitutional or unlawful or unenforceable in some way. I think that’s significant.

TIM: Do you think that’s going to spread to other areas, other states in the coming weeks?

HA: Inshallah

TIM: Can you briefly explain for our readers the executive order and what is to come in the next weeks and months? What will you be doing? What will other lawyers be doing?

HA: The executive order, there’s two of them. One that looks outward and tries to blocks people from coming in, one that looks inward and focuses entirely on enforcement and removal of people who are inside the United States already. With regards to the one looking outward, blocking people from coming in, they have nearly unilaterally, without any notice, blacklisted entire countries. The way this is done is by saying the United States used to require x and y in order for people from these countries to adjudicate these applications from those countries. Now we are going to require x, y, z and b, c, d, e, and if these countries cannot provide this information, they will be blacklisted.

So all the secretary of Homeland Security has to do is tell President Trump these countries do not provide the information we need, and President Trump will then go and issue a presidential proclamation that says this country doesn’t do it and therefore people, nationals from that country, are banned from coming into the country until the United States is satisfied that they are in compliance with the new requirements.

As a result of this system, the first 30 days are a bit different. The first 30 days, they put the seven countries that we know of under a blanket ban, while we figure out which countries in the world are not in compliance. Thirty days from Friday, there will be a new list coming out — and it may be the same seven countries, maybe more, maybe less, we’ll see — that will then say these are the countries not in compliance and travel from these countries are banned. We won’t get much notice about it, maybe we’ll get notice, I don’t know. Those countries will then have 60 days to come under compliance and if not, the ban will continue indefinitely until that’s done.

The concern that I have, the question people are asking me, is “I’m planning to go on Umrah,” for example, “and I’m coming back February 20, or “I was going to go to Umrah in March. I’m a Pakistani national and Pakistan isn’t on the list, I should be okay, right?” And I say, I don’t know because a lot can change, that this new list will come out and you don’t want to be stuck outside the United States if the new proclamation comes out and you find out your country is on the list. Certainly, if you have a valid non-immigrant visa, you should try to extend it. I am not advising people to overstay their visa and stay here unlawfully.

The other executive order that looks inward will make you a priority for removal. That’s one of the big things the other executive order does is that it talks about focusing on foreign nationals with criminal records. But if you look at the actual categories, it includes anyone the government thinks has committed acts, which may constitute a criminal act, so there’s no conviction or charge or arrest required. They have a catchall category that says that in the immigration officer’s judgment, the person poses a threat to public safety, that many people who overstay their visa are a threat to public safety. And in the same executive order, it says anyone who overstays a visa, or many people who overstay a visa, are a threat to public safety.

Really, I mean who does it leave out? It doesn’t leave anyone out. What they’ve done is made everyone a priority one and they continue to say there is a prioritization scheme. It’s laughable, honestly. Anyone who overstays in the inward-looking executive order, it absolutely looks at deportation and sees deportation removal as the sole solution to the country’s immigration problem and the broken immigration system. It really is deplorable. I did a write up of it on my blog in more detail, if you want to check it out.

*Image Credit: Flickr/Yossi Gurvitz

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