The morning after Judge Anne M. Donnelly granted an emergency stay against the implementation of President Donald Trump's executive order banning immigrants en route to the United States from seven majority-Muslim countries, many questions remain about how the order will be applied.
While four more detainees were released from John F. Kennedy airport overnight, at least six reportedly remain in custody [update below]. The stay simply disallows deportation. Attorneys on both sides are scheduled to hand in their arguments on February 21st, with a hearing date to follow. But the group could be detained indefinitely: either until the president stands down, or a court rules the detention illegal.
Port Authority deferred to Customs and Border control for clarification on the number of detainees at JFK. We've reached out to the agency and will update accordingly.
"Although it is heartening, those people are still detained," Anthony Enriquez, an attorney with the Immigrant Defense Project, told Gothamist on Sunday. "Those people at minimum can be detained at least a month longer."
By contrast, a judge in Boston ordered Saturday that all individuals held at Logan International Airport be released.
This morning we spoke with Enriquez to discuss the parameters of the stay, and the lingering unknowns: whether Homeland Security will enforce the stay nationally, and whether the stay will impact immigrants en route to the United States in the coming days and weeks.
The American Civil Liberties Union filed the stay on Saturday, on behalf of Hameed Khalid Darweesh and Sameer Abdulkhaleq Alshawi, both of whom were detained early Saturday at JFK.
"What they asked for was very narrow," Enriquez said. "It was for the judge to simply prevent the deportations of anyone who had been detained or will be detained."
Here at JFK with the families of individuals w/ visas who are STILL being detained, some w/ relatives who are active duty military #Shameful
— Hakeem Jeffries (@RepJeffries) January 29, 2017
But Enriquez was careful to emphasize the significance of the decision, especially the judge's statement that the ACLU is "substantially likely" to ultimately succeed in its case that the executive order violates the constitution.
"Even though the order itself doesn't mean that the ACLU won the lawsuit, it means that if the case were to go to trial today, the ACLU would be substantially likely to win," he said.
Enriquez added that the judge seemed incredulous throughout Friday's hearing. "She repeatedly said that two days prior we wouldn't even be here," he said. "There was a sense of the abnormality of this, the idea that these people have already been vetted."
The ACLU case is representing immigrants who have already been vetted by the US government, and granted refugee or green card status. While green card holders were reportedly exempt from the ban late last night, it still applies to those with student visas, approved refugees, and those with any kind of family-approved visa. "Basically anything aside from a green card," Enriquez said.
Crowd growing quickly, chanting "No ban, no registry/Down with white supremacy" pic.twitter.com/gcMndCFGu9
— WriteColonWrite (@DaveCoIon) January 29, 2017
At 2:00 a.m. on Sunday the ACLU filed an emergency order to clarify the scope of last night's order, and clear up some of the unknowns. Already, Homeland Security is challenging Judge Donnelly's decision that the ban can be applied nationally.
"Homeland Security released a statement that they would comply with all judicial orders, but they are disputing whether Brooklyn applies nation-wide," he said
And while the language of the stay refers to people who have been and "will be" detained, it's not yet clear if "will be" refers to people who were in the air en route to the United States when the stay was granted, or anyone who gets on a plane to the US in the coming days and weeks.
While Enriquez said there isn't an official deadline for the clarification, he expects it to come down quickly. "The judge held an emergency hearing on a Saturday night, which is pretty unorthodox," he said. "I would expect the clarification some time today."
In the meantime, attorneys are still stationed at JFK, to monitor the situation and keep writing habeas corpus petitions on behalf of detainees—lawsuits that argue an individual is being illegally detained. According to Enriquez, his office is hearing reports of Customs officials continuing to tell people to get on flights back to their country of origin, effectively ignoring the order.
"There are still reports of [Customs] saying, 'If you donʼt get back on the plane, not only will we cancel your visa, but we will prevent you from applying for the next five years,'" Enriquez said Sunday morning. "To refugees, thatʼs saying, 'Hope you survive for the next five years and weʼll get back to you later.'"
Camille Mackler, director of legal initiatives for the New York Immigrant Coalition, was at JFK yesterday from 11:00 a.m. to 8:00 p.m. Throughout the day she observed families with children, waiting for relatives detained on the other side of Customs.
She spoke with Gothamist this morning from her home. "There is still a big rotation of lawyers at the airport. They have a list of incoming flights," she said.
"I think what struck me most [Saturday] was the anger," she recalled. "I think the families felt a little disconnected from what was happening outside. There were children just sitting for hours in the airport, and press showing up everywhere. It wasn't fear, it wasn't sadness, it was absolute anger."
She went on to emphasize the importance of continuing to file habeas corpus petitions for individual detainees.
"Last nightʼs decision didn't address the legality of the executive order," she reiterated. "It just prevented Homeland Security from returning people to their countries until a decision can be made. So the more habeas corpus filings that can be made, the more that's on the record about these people, and the more we can prove the point that these people aren't illegal, and the executive orderʼs effect is against established law and precedent."
Non-lawyers can also participate today. Scheduled actions include a rally at Battery Park in Manhattan at 2:00 p.m. "The government is scared of us," Enriquez said. "The government is afraid of the people. It isnʼt just the lawyers on the [ACLU] case or the marchers outside the courthouse. Itʼs everyone together."
[Update 12:00]: Another detainee has reportedly been released.
Tears and hugs at JFK's international arrivals as a detainee is released, reuniting father with son. More families wait, cheering. pic.twitter.com/WrVpoocWjY
— Jack Smith IV (@JackSmithIV) January 29, 2017