Lawyers got to Sea-Tac Airport just in time Saturday to prevent two men from being flown out of the country because of President Trump’s executive order on refugees and visitors from seven Muslim-majority countries. But the legal drama continues.
They were running for the gate, the two attorneys, one specializing in immigration law, the other a Port of Seattle commissioner. They knew they might not make it in time.
An Emirates airplane was about to leave for Dubai at just after 5 p.m. Saturday, and on it were two men who had landed at Seattle-Tacoma International Airport. They had been told they could not stay because of an order signed the day before by President Trump.
When Northwest Immigrant Rights Project (NWIRP) Executive Director Jorge Barón and Port Commissioner Courtney Gregoire reached the gate, they saw the plane had pulled away from the jetbridge.
“I’m thinking it’s too late,” Barón recalled Monday. “There’s just no way.”
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Barón and ACLU lawyers had been frantically preparing a petition to federal court to stop the two men from being sent away. It was a time of chaos locally and around the country as officials grappled with the implications of the executive order, which stops all refugees coming to the country for 120 days, indefinitely bars Syrian refugees, and denies entry for 90 days to any visitors from seven majority-Muslim counties. Protesters converged on Sea-Tac.
It was not too late. Announcing that a federal order was on the way, Barón was able to stop the plane from taking off. The two passengers at the center of the frenzy, one a Sudanese national, the other a Yemeni, were allowed to disembark.
“I actually wept,” said David Whedbee, one of several attorneys at the airport on behalf of the ACLU. “That is a moment you dream about in law school.”
Yet the legal drama was far from over Saturday — and it continues still. On Monday, NWIRP and two national- legal organizations filed a class-action lawsuit challenging the executive order’s seven-country ban, which the complaint called “unlawful and discriminatory.” It is one of several challenges to the order, including a lawsuit state Attorney General Bob Ferguson filed Monday.
Later that day, then-Acting U.S. Attorney General Sally Yates, an Obama administration holdover, directed Justice Department officials not to defend the order in court. Trump fired her.
The “John Doe” petitions
On Saturday, one of the main problems for lawyers and local officials was getting information from U.S. Customs and Border Protection (CPB). Gregoire, former U.S. Attorney for Western Washington Jenny Durkan, Sen. Patty Murray and U.S. Reps. Suzan DelBene and Pramila Jayapal were among those at the airport asking questions.
“Nobody was getting any answers no matter how high up they were,” Whedbee said.
While Gregoire kept trying to get information, she asked her husband, there with her, to go to baggage claim and look for anyone who seemed like they needed help. That’s how she learned of a Somali-American from the Seattle area who was expecting her husband to arrive from Vienna, where he has been living.
In a conference room at the airport, the woman and members of her extended family met with Gregoire and later Barón, called in by the Port commissioner. They soon learned that the woman’s husband had been put on a plane back to Vienna. CBP had confiscated the husband’s phone, but he had borrowed one from a fellow passenger to let his wife know where he was, according to Barón.
Soon, he said, he and others started hearing about two other men who had been put on the plane to Dubai. CBP would not release their names, Barón said.
So lawyers quickly drew up a petition on behalf of “John Doe 1” and “John Doe 2.”
The petition alleged that the two men were being sent away without the due process of judicial or administrative review. It also challenged the executive order on the basis of constitutional guarantees to equal protection regardless of race or religion. “The Executive Order was substantially motivated by animus toward — and has a disparate impact on — Muslims,” the petition read.
The next day, Trump would deny that. “To be clear, this is not a Muslim ban, as the media is falsely reporting. This is not about religion — this is about terror and keeping our country safe.”
But in Seattle on Saturday, U.S. District Judge Thomas Zilly saw enough merit to grant an emergency stay preventing the two men from being flown out of the country. Around the same time, a New York federal judge issued a similar stay, which applied nationally to people who had reached American soil. But word of that order hadn’t reached Sea-Tac by 5 p.m., and it was Zilly’s stay that stopped the Emirates plane.
Going to “jail”?
Mohamed Alagraa, one of the two men on whose behalf the petition was filed, said he greeted this development with mixed feelings. The Sudanese engineer, who lives in Dubai and was on his way to a conference in Las Vegas, had taken a 14-hour flight to reach Sea-Tac at 6 a.m. He knew nothing of the executive order until watching a live news broadcast on board.
Then, told he had to go home, he agreed to sign a visa waiver and waited nearly 12 hours in the airport for the Emirates flight. “Oh, my god, let me sleep,” he said he thought.
Yet, with hotel and conference reservations, and an expensive flight, he had spent thousands of dollars to get where he was going. He got off the plane.
The Yemeni man did the same, although initially he just wanted to go home, according to Alagraa.
Their situation got worse before it got better. Zilly’s order did not say what would happen to the two men next. They wouldn’t be sent back, but were they free to go?
As their fate was being discussed late into the night, CBP officials — while respectful and providing their charges with food and drink, according to Alagraa — told them their airport office was closing and they would have to go to the Northwest Detention Center in Tacoma.
“Little by little, we started to understand it is a jail,” Alagraa said. “That led us to be afraid.”
Continued discussions led CBP officers to consult with superiors in Washington, D.C., who granted approval for the men to be released.
He has no hard feelings, said Alagraa, speaking Monday from Las Vegas, although he said the world has learned “terrorists can be from any country,” including in Europe.
The legal reasoning behind Trump’s executive order now stands to be put to the test. NWIRP filed a proposed class-action lawsuit Monday on behalf of U.S. citizens and green-card holders who have submitted visa applications for family members.
Two of the plaintiffs are from Seattle: a U.S. citizen trying to bring her 6-year-old son here from Somalia; and a green-card holder from Syria whose 16-year-old son has a pending immigrant-visa application.
The lawsuit uses some of the same reasoning as Saturday’s emergency petition, alleging that the order violates due process and equal-protection guarantees.
It also charges that the order goes against immigration law that prohibits discrimination on the basis of place of birth or residence.
Different lawsuits are taking on different aspects of the order, noted Kathryn Watts, a University of Washington law professor specializing in presidential power and constitutional law.
NWIRP legal arguments are aided by its class of plaintiffs, she said: people who already live here and are protected by U.S. laws. The order’s effect on refugees, who by definition are from elsewhere, may be harder to fight, she said, although she was waiting to see whether a lawsuit would emerge challenging the whole order.
Watts said she believed NWIRP’s lawsuit, like some of the others filed, had a good chance, as shown by the fact that judges have already issued emergency stays. They wouldn’t have done so, she said, if they didn’t think lawsuits were likely to be successful.