A day after President Trump issued a sweeping and almost certainly illegal executive order allowing immigration officers to refuse entry to people from seven Muslim-majority countries, even if they are carrying valid visas, have green cards, are dual-citizens, or are refugees, a federal judge in Brooklyn this evening imposed a stay on nationwide deportations under the order.
The stay had been requested by a coalition of lawyers and legal groups including the American Civil Liberties Union on behalf of a group of people who found themselves living through a very particular nightmare: Having left their points of origin with valid paperwork for entry, they landed in a country made hostile overnight by a stroke of the president’s pen. At John F. Kennedy airport in New York, as well as in airports around the country, an estimated hundreds of people found themselves detained, subjected to extended interrogations, and threatened with being sent back to the countries they had just left.
At JFK this afternoon, the Voice spoke with a man waiting for the arrival of his 68-year-old Yemeni mother who he was being told was shortly to be put back on a plane to Saudi Arabia. “She is 68 years old, diabetic, with high blood pressure, she takes four kinds of medicine,” the man said. “I’ve been trying to get a visa for her for the last two years. Finally, January 22, I got it. Now she’s here, and they’re saying they’re going to return her. What are they afraid about a 68-year-old woman?”
Arrivals lounges in Terminals 1, 4, and 7, were filled with staff attorneys and volunteer immigration lawyers scrambling to meet the people being held, mostly without success. Running between officials and relatives waiting to see their loved ones, they hastily compiled habeas corpus petitions contesting the government’s right to hold them.
Meanwhile, outside Terminal 4, a steady stream of New Yorkers responding to calls by Make the Road New York and the New York Immigration Coalition for a protest at JFK swelled to over 1,000 people. Chanting “Racists out! Refugees in!” and “Fuck the Wall, We’ll tear it down!” the crowd spilled out beyond the police barricades erected to contain it, choking the sidewalk and filling parts of an adjacent parking garage.
“Muslim and unafraid, Let Them In!” read a sign carried by Lena Afridi, 30, of New York. “My community is under attack,” she said. “I just want to express solidarity with people who are going through a really tough time.”
“You have to be here,” said Frank Duffy, 41, of Staten Island, who carried a sign that read “No Mandate For This.” “We’re at a critical moment. We’re quickly losing our sense of who we are.”
Police did their best to keep travelers away from the protest, but not everyone inside the terminals wanted to avoid it. Barbara Laubenthal, a German woman on her way home from Texas, asked the Voice for directions to the protest, as she hoped to visit it before her connecting flight. “I find it appalling, what’s happening,” she said. “I think it’s a shame that people who need our protection are being criminalized.”
As the protest mounted, the New York Taxi Workers Alliance called for a temporary strike at JFK from 6 p.m. to 7 p.m. With more and more New Yorkers heeding the call to trek out to the airport on a cold Saturday evening, Port Authority police began refusing to allow people to board the AirTran that connects the subway to JFK. The Port Authority did not respond to a request for comment from the Voice, but soon posted an explanation of the policy on Twitter: “The Port Authority of NY & NJ respects the right to protest. AirTrain JFK controls in place for public safety, due to crowding conditions.” Facing mounting outrage on the scene and online, the Port Authority police reversed themselves and opened up access to public transit again. Governor Andrew Cuomo took credit for the change.
Still, the crowd continued to grow. As police in helmets with truncheons and plastic handcuffs began to assemble at the periphery, word circulated among the protesters that the lawyers’ furious work inside the terminals might be paying off: a federal judge had agreed to hear an emergency petition for an injunction ordering the government not to send back or detain anyone on the basis of the executive order.
Some protesters and journalists raced back to Downtown Brooklyn, hoping to make it to the 7:30 hearing, but court officers only let a handful of the hundreds thronged outside into the courthouse to observe the hearing.
On its surface, the hearing shouldn’t have been anything remarkable. The petition filed by lawyers representing the detained individuals simply sought a temporary injunction until the court had time to rule on the larger issues surrounding the executive order’s dubious legality. But as one of the first legal challenges to the Trump administration’s efforts to remake American policy, the mood of the crowd watching the last-minute nocturnal hearing was electric.
Government lawyers from the United States Attorney’s Office and a Department of Homeland Security official attempted to argue that the petition was moot, since the two named petitioners had ultimately been released a few hours before. But Judge Ann Donnelly cut briskly through that argument, noting that an entire category of travelers — between one and two hundred — by immigration lawyers’ estimate — were in a similar position, and would likely win certification as a class for the purposes of a lawsuit.
Donnelly read the relevant passages of Trump’s executive order aloud to the government lawyers. “I’m assuming that we’re going to have more people this order is going to have an impact on, correct?” she asked. “Yes, your honor,” government counsel conceded.
Donnelly repeatedly pressed government lawyers to articulate some argument, either why the government would be harmed if she granted the stay or why the people being held in detention would not suffer irreparable harm if she didn’t. The government lawyers floundered, unable to do so, and Donnelly granted the stay.
Lee Gelernt of the American Civil Liberties Union, one of the groups representing the detainees, told Donnelly that Customs officials were also refusing to give his team a complete accounting of how many people it was holding under the executive order. Government lawyers protested that they were unable to do so. Donnelly was unimpressed. “I don’t think it’s unduly burdensome to identify the people we’re talking about here,” she said, directing the government to make that available to the petitioners.
A broader challenge to Trump’s executive order won’t come before Donnelly until February 21, meaning that unless the government voluntarily relents, the people detained at airports all over the country tonight may remain locked up for at least a month, waiting to learn their fate.
The granting of the stay was greeted with cheers by the thousands of protesters outside the courthouse and at JFK, but the victory is a very limited one. The ruling covers only those people who, by a fluke of being in the air when the policy changed, managed to land on American soil. Those outside the country (or contemplating going outside the country) with valid visas and green cards will remain unable to get in.