Early Sunday, less than 48 hours after the haphazard and mistake-riddled implementation of Donald Trump’s almost certainly unconstitutional travel ban, two district court judges in Massachusetts issued a sweeping order appearing to call for a temporary halt to the executive order.
Donald Trump and anyone working with him to implement the ban, Judges Allison Dale Burroughs and Judith G. Dein wrote, “shall not, by any manner or means, detain or remove individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, lawful permanent residents, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen who, absent the Executive Order, would be legally authorized to enter the United States.”
The judges went further, instructing Trump and his agents to notify airlines that these people would not be detained or returned “solely on the basis of the Executive Order” so long as they flew in to Boston’s Logan Airport. This was widely interpreted as a very clear instruction: Tell the airlines that previously blocked travelers are now allowed to fly to Boston.
By Tuesday night another court, this time in Los Angeles, had issued an injunction restraining Trump from “blocking the entry” of a number of specifically named would-be travelers trapped in Djibouti and “any other person from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen with a valid immigrant visa.” The order also instructed the airport to “immediately” notify all relevant authorities at Los Angeles International Airport and Djibouti’s international airport that the plaintiffs in the case were allowed to travel.
It’s been more than four full days since the Boston order and more than one full day since the Los Angeles order. Nothing has changed. Travelers cleared by the two court orders to come to America have instead been blocked. They remain in legal limbo, often trapped in places that are not their homes. How is Trump getting away with violating not one but multiple sweeping court orders telling him to stop the implementation of his and the Republican Party’s travel ban? Trump has violated the spirit of the court rulings—and, in the opinion of experts, the letter—through a mix of legal chicanery and subterfuge, enabled by a Kafkaesque bureaucracy doing the president’s will rather than the will of the courts.
On Wednesday afternoon, I called the security department at Qatar Airways to try to determine what it had been instructed to do by Trump’s Customs and Border Protection agency. (I made multiple phone calls and sent multiple emails to Jaime Ruiz, a public information officer for CBP. His phone mailbox was full, and he has not returned my emails.) The lawyer who filed the Los Angeles suit, Julie Goldberg, told me in a phone call from Djibouti that she had been attempting to put her clients—who following the Massachusetts order should have been allowed to fly to Boston—on flights to Logan. They had been turned away en masse. That first court order, you’ll recall, explicitly instructs the administration to tell airlines that they need to let people on these flights. As of Monday morning, well after the order, Qatar Airways—which flies from Djibouti, where hundreds of Yemenis are trapped, to Boston via Doha—was not letting her clients board those planes. The security agency had told her its latest update from CBP had come Monday morning and had not added the travelers covered under the Boston order. On Wednesday, when I called the security department of Qatar Airways—the department at that airline that receives and carries out instructions from CBP on who is and isn’t allowed to board flights—I learned that the policy still hadn’t been updated, even after the Los Angeles court order and its instructions to “immediately” notify relevant authorities that some of these passengers were allowed to travel.
When I gave a man who identified himself as Hamdi a couple of the names listed in that Los Angeles order, he told me he couldn’t find them. “I have hundreds of billions of names—passengers who cannot travel today. So I’m not sure if we have these names today coming from Djibouti. But we have from Djibouti today, we have from Addis Ababa. We have from almost everywhere almost,” he told me. “Mostly they are Somali passengers. They are traveling using their visas, which is not allowed anymore, to go to the U.S. as per the new rules, which have been implemented recently, a few days ago. Passengers are intercepted and offloaded from the flights. We don’t have any further notice when we’re going to accept or accepting these people again.”
He informed me that the last update from CBP was received Monday—apparently the same one that Goldberg was aware of. The Trump administration had not updated its instructions with the Boston court order. “Other visas, immigrant visas, IR, IR1, IR2, these visas are not allowed to go,” Hamdi told me. (The Boston order clears for travel both refugees and “holders of valid immigrant and non-immigrant visas.”)
When I read him one of the court orders, Hamdi said: “No, no. I’m afraid this is not accurate information, because we have the information coming from Customs and Border Protection agency in U.S. saying it gives us the categories of visas that are allowed to travel to the U.S.”
Again, this was according to the last update from CBP, received Monday, he said. I then attempted to call a number I had been given for CBP headquarters at JFK; the number had also been publicized on Facebook. The response on the line was this: “You have reached an unworking number in our organization. If you’re trying to reach the Federal Aviation Administration, the new number is (718) 995-7999. All others please use the main agency number.”
When I called Qatar Airways back to try to get the new CBP number, we went around in circles for a half an hour. When I tried to get representatives to explain to me on what basis they were ignoring the court order, they repeatedly cited CBP. One man in the security department who identified himself as Deshaun attempted to explain it this way: We are following “direct orders given by the U.S. president. It’s there. It’s published in common website, general website.” Another man in the security department, Benson, told me he couldn’t give me the CBP number, but he could call CBP and ask officials if there had been any update to the policy since Monday. At that moment, anyone with access to Google had better information than the people working in the security department at Qatar Airways, and the administration didn’t seem in any rush to keep the principals updated, court order be damned.
That’s where the legal chicanery comes in. The administration has instructed airlines that it has “revoked immigrant and non-immigrant visas for travelers to the United States from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.” The Boston order applies in part to “holders of valid immigrant and non-immigrant visas.” The government says that since it revoked those visas—without having publicized it to anyone except the airlines—they are no longer valid, so the court order doesn’t apply to the people to whom it applies. This reading is tendentious at best and outright malevolent at worst. As Ahilan Arulanantham, legal director at the ACLU of Southern California, put it to me in a phone call: “If you were dealing with an administration that was adopting a fair reading of the law, that [Boston order] would have been sufficient. But what we found between Saturday night, and then Sunday, and then Monday, and [Tuesday], and [Wednesday]—based on what I’m hearing—is that the government has tried to subvert the order by exploiting these barely existent ambiguities.”
Those barely existent ambiguities are the “valid visa” portion of the order. “If you’re looking for daylight here, that is the daylight,” Pratheepan Gulasekaram, an associate professor and expert in immigration law at Santa Clara University School of Law, told me. “If the order says you can’t deny a ‘valid visa’ to somebody coming from one of these countries, then fine, make the visa invalid before they get in—then you’re no longer denying that visa.”
He added, “I think that it’s a nonsense way of doing it.”
Not only does the administration’s justification for refusing the Boston order disobey the spirit of the order, but it also seems to violate the letter. The order says, “Customs and Border Security shall notify airlines that have flights at Logan Airport of this Order and the fact that individuals on these flights will not be detained or returned solely on the basis of the Executive Order.” The secretly issued State Department memo that revoked those visas was handed down on the same day as the executive order. It says it was being issued “in implementation of … the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals.” Hardly any ambiguity there: The State Department memo is just a proxy for the executive order.
The court orders have also run headlong into a confused and sprawling bureaucracy where the only clear chain of command leads right to Trump. As Gulasekaram told me: “I can imagine any number of scenarios where you have agency actors, especially low-level agency actors spread across these departments, being truly confused by it, and for others ideologically just feeling like they want to skirt the order to the fullest extent possible, and this is the way they’re going to do it.
“Fundamentally, this comes down to the responsibility of the executive. The executive has to have control over his underlings, over his Cabinet-level members, and then have them control their line officers and get them in line, otherwise the president and everybody on down the line is essentially violating the court order and can be held in contempt.”
I witnessed this in my dealings with Qatar Airways. On Thursday, I checked the Qatar Airways website, and it had clearly been updated from what it had been on Wednesday with the CBP specifications for who was allowed and who wasn’t—but it still did not acknowledge the court orders. What this means, in all likelihood, is that at some point between Wednesday afternoon and Thursday morning, CBP and Qatar Airways communicated in some fashion—and CBP apparently neglected to mention anything about the people affected by the Boston and L.A. court orders. (It’s possible, but doubtful, that the airline made the change on its own. The clear indication to me on Wednesday was that officials there were only following instructions from CBP.)
I called the Qatar Airways security line again Thursday from the same number I had on Wednesday to see if officials there had received this update after calling CBP at my behest. At that point I received an automated message in Arabic followed by this message in English: “Sorry, your call is restricted.” I tried again and received the same message. When I tried from a different number, a man answered, identifying himself as Shafeek. When I asked him if the policy had been updated since Wednesday, he said, “Yes, sir.” When I asked Shafeek when he had received new guidance for that, he handed me to Deshaun. Here is a condensed transcript of our conversation:
Me: It appears that they have now changed the information on the website?
Deshaun: I’m not in a position, like I told you, to give you any information or any update or any information related to visa requirements to the U.S. You need to speak to someone in the U.S. Embassy or consulate, or you need to refer to the website. As the airlines, we have very limited information that we are not going to disclose to an anon person.
Me: Is there a new policy? Have there been new instructions from CBP?
Deshaun: Like I told you, I’m not going to give you any new information, Jeremy, because you are [not] known to me. You are not working for any airline authority. Whatever we follow the instructions given by the U.S. authorities.
Me: Has the website changed?
Deshaun: I don’t know.
Me: Don’t know or can’t tell me?
Deshaun: I can’t give any information. We are not referring to any website here. Call Qatar Airways customer service.
Me: Yesterday someone in your office was able to tell me precisely what types of visas were allowed. Why can’t you do that now?
Deshaun: May I know who gave you this information yesterday?
Me: One of the people I spoke with did.
Deshaun: I am an employee of Qatar Airways. Like I told you, I am not in a position to give you information because you are an anon person from me.
Me: Who told you that you’re not in a position to give me information?
Deshaun: Nobody is stopping me. I know my rights. I know what I’m talking about. So like I said, I’m not going to give you any information.
Me: Why was I given information yesterday and not today?
Deshaun: Let’s stop this conversation. This is not going to work. You need to talk to customer service, or you need to talk to the CBP.
Again, CBP has not returned my repeated requests for comment, and the phone number I had for its headquarters is no longer working.
This farrago of miscommunication, bureaucratic entanglements, and legalistic misdirection surrounding an enormous and broad group of visa-holders—the Boston Globe reported that some 721 of the affected visa-holders had been prevented from boarding in the first three days—is precisely how the administration has been able to justify its defiance of the Boston order. In the case of the Los Angeles order, however, there is no ambiguity whatsoever. It applies, very specifically, to more than two-dozen plaintiffs and offers very explicit instructions on what the administration must do to make those plaintiffs whole.
From the order:
Defendants and their officers, agents, employees, attorneys, and all persons acting in concert or participating with them, are ENJOINED AND RESTRAINED from enforcing Defendant President Donald J. Trump’s January 27, 2017 Executive Order by removing, detaining, or blocking the entry of Plaintiffs, or any other person from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen with a valid immigrant visa; Defendants, and Defendant United States Department of State in particular, are hereby ENJOINED AND RESTRAINED from cancelling validly obtained and issued immigrant visas of Plaintiffs;
Defendants, and Defendant United States Department of State in particular, are hereby ORDERED to return to Plaintiffs their passports containing validly issued immigrant visas so that Plaintiffs may travel to the United States on said visas; and Defendants are hereby ORDERED to IMMEDIATELY inform all relevant airport, airline, and other authorities at Los Angeles International Airport and International Airport in Djibouti that Plaintiffs are permitted to travel to the United States on their valid immigrant visas.
There is no wiggle room here. So is the White House following this federal court ruling? On Thursday, Goldberg told me she had attempted to take her clients to the embassy in Djibouti. “We took a video of us going there, and [officials at the embassy] refused to give [these plaintiffs their] passports back,” she said. “And the police kicked everybody off the embassy. There were U.S. citizens [kicked out]. Everybody was really upset. So, it’s been a long day.”
“They are absolutely not following the court order,” she added. In addition to not handing over the passports and the visas—as the order clearly instructs the State Department to do—airlines were still not letting the plaintiffs in this case board flights. Goldberg is attempting to find a workaround so that she doesn’t have to deal with the airlines.
“At this point, I am looking for a private charter who is not going to be intimidated by CBP to charter a plane and bring all 240 people,” she said. (She filed the suit on behalf of a small number of clients, but she has begun to work on behalf of a much larger group that she intends to add to the suit as part of a class action.) “The cost is absolutely prohibitive for some of these people.” She would like to crowdfund the costs of the flights “because you know they’ve already paid once, and now they’re paying a second time.”
That Goldberg can’t find a carrier willing to ignore CBP’s illegal orders and take these people to the United States isn’t even worst part of this story. Even more egregious, she said, is the defiance of a court order issued Tuesday night specifically instructing U.S. officials to return to the plaintiffs “their passports containing validly issued immigrant visas.” On Wednesday, Goldberg tried to get the passports back, with no luck. On Thursday, she tried again and was again turned away.
“If you would have asked me any time in my life, would we get a president who could absolutely disregard the three-system body that we have in this country, I wouldn’t have believed you,” Goldberg told me when we spoke on Wednesday. “To blatantly disregard a judicial order is for me beyond comprehension.” Fourteen days into the Trump administration, we’re learning the world is daily more full of things previously thought to be beyond comprehension.