On Friday, President Trump issued a sweeping Executive Order under the auspices of terrorism prevention that barred nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days. The order, aimed at citizens of the seven countries, affected previously obtained visas, and also applies to dual-nationals who are also citizens of countries not otherwise requiring a visa to enter the United States. Most notably, the ban also extends to nationals of these countries who have already been granted the right to permanent residency in the United States, or holders of so-called green cards. Those green card holders caught outside the United States cannot re-enter, and those inside the United States must be granted permission to travel out of the country on a case-by-case basis.
The timing and immediacy of the order has caused confusion amongst travelers. The breadth of the order was unexpected. Additionally, it took time to figure out who was actually being affected, as the countries were not listed in the order, but rather were referenced via a section of the United States Code. For many of those living in their home countries, the most expedient flights to the United States run through Dubai, Qatar or Abu Dhabi. With all of these flights being in excess of 12 hours long, and some as long as 16, some affected travelers were already on their way when the order was enacted. After the order was issued, many travelers were denied boarding for their scheduled flights. However, those whose flights left prior to its enactment arrived in the United States and were detained by Customs and Border Patrol.
According to The New York Times, as many as nine passengers were detained at JFK Terminal 7. This is where Qatar Airways flight 703 arrived at 7:20am Saturday, after leaving Doha on Friday, barely an hour after President Trump signed the order. Terminal 4 at JFK had flights from Dubai and Abu Dhabi, operated by Emirates and Etihad respectively, arrive at similar times. A further two passengers were reported as being detained from these flights. Similar scenes played out across the country as passengers who believed they were heading to the United States in accordance with the law, arrived to find their travel documents voided by the order. According to reports, the President’s order also took many in government by surprise, with senior Customs and Border Patrol officials only being briefed on its contents while the President signed it.
The effects of the order have wide-ranging diplomatic ramifications. Iraq, where the United States still has both military personnel as well as civilian contractors stationed, has threatened to enact reciprocal procedures. The United States still does not have direct diplomatic ties with Iran, and consular affairs for Iranians seeking visas are either handled in the Gulf states or Turkey. The order complicates things further, especially as it pertains to the large expatriate Iranian population in the United States. Many have family still trying to escape the theological regime in Tehran, whom this order treats no differently than a member of the Revolutionary Guard. For citizens of Syria, Libya and Yemen, whose countries have been wracked by civil war, the light at the end of the tunnel has been extinguished, at least for now.
Saturday evening, a Federal Judge for the Eastern District of New York granted a partial stay of the Executive Order. Throughout the day on Saturday, lawyers of all specialties mobilized in order to provide assistance for those affected by the order. Two Iraqi immigrants, one of whom had worked with US forces for a decade, filed a petition for a writ of Habeas Corpus over their detention at JFK with the assistance of the American Civil Liberties Union (ACLU). Their lawyers further sought to certify a class action, which would make it easier to challenge the ban in its entirety, as all members would be represented in a single action. While the class was not certified, the judge did order a halt to all deportations, and demanded that the government hand over a list of all people it was detaining. Without the class certification, each detainee was forced to file their own Habeas petition. This was done with the assistance of the countless lawyers who volunteered at international airports across the country. By the early hours of Sunday morning EST, almost all detainees had been released as court orders were filed and enforced.
Moving forward, enforcement of the ban is particularly problematic as it pertains to dual nationals. While screening of passengers prior to boarding is usually focused on ensuring the presence of proper travel documents, President Trump’s inclusion of dual citizens necessarily means that airlines will need to ensure that every passenger does not have a passport from each of the seven countries, in addition to any passport they are traveling on. Proving the lack of something is much more difficult than proving its existence. It is not clear that the full ramifications of the order were adequately assessed prior to its execution.