Philadelphia legal community responds to Trump’s executive order on visas

Mary Chicorelli was settling in for a quiet Saturday afternoon when she first saw the news on Facebook.

“I was sitting at home, preparing to watch a whole lot of movies and eat popcorn,” she said. “And I saw a post from Councilwoman Helen Gym.”

Some were being detained at Philadelphia International Airport, and others already sent away, caught up in President Trump’s sudden executive order to suspend the visas of individuals from seven majority-Muslim nations.

Councilwoman Gym called for protests at the airport. 

Chicorelli, an immigration attorney, hoped she could do more just than hold up a sign. But when she got to the airport, Customs officials were refusing to let any of the dozen local attorneys already gathering at the international arrivals gate speak with the detainees. “That’s why it was so frustrating,” said Chicorelli.

“I mean, I was there, I was chanting and trying to talk to attorneys that were doing a lot more than I was,” she said. But besides offer moral support, there was little for Chicorelli to do at the airport Saturday night.

An ad-hoc legal team of civil rights and immigration lawyers was already on the case when Chicorelli arrived. Lawyers from the American Civil Liberties Union (ACLU) of Pennsylvania, HIAS-PA, Villanova University Law School, and the firms Langer, Grogan & Diver and Kairys, Rudovsky, Messing & Feinberg organized themselves that morning, after hearing reports of visa-holders being detained at JFK International in New York.

It was only when a local reporter called to ask about the six Christian Syrians who arrived Saturday morning only to be forced back on a plane to the Middle East that the team realized it same was already happening in Philadelphia.

The team scrambled to respond. Phone calls were made and tasks assigned. Jonathan Feinberg from Kairys, Rudovsky went down to the airport with HIAS-PA’s Ayodele Gansallo to try to talk with the detainees. One lawyer began to draft a habeas corpus petition to demand the release of whoever they’d find there. Some attorneys found the federal judge on call over the weekend to hear emergency petitions, while others focused on researching case law for the petition.

Before she got going in earnest Saturday afternoon, the ACLU’s Molly Tack-Hooper turned off the out-of-office automatic reply on her email. “I am actually—technically—on maternity leave right now,” she said with a laugh. “I’ve been home with my six-week old baby.” She handed her infant to her husband (also an attorney for the ACLU) and got to work. “There was too much to do.” Lawyers have a reputation for being workaholics, but that’s not what spurred Tack-Hooper and Chicorelli into action. Like many of their professional peers who passed the bar, they believe President Trump exceeded his constitutional authority with this executive order. And it is their job, as attorneys, to engage the court system to check his executive powers.

That’s a job not everyone appreciates, not even all lawyers. But some take the responsibility extremely seriously. The legal team worked around the clock this weekend. When a reporter jokingly told Feinberg to get some rest, he replied with dead earnestness: “It’s hard to be concerned about my sleep given where we are.”

When Feinberg arrived at the Philadelphia International Airport on Saturday, customs and border patrol officers prevented him from speaking with the detainees. According to Feinberg, they had already turned away Mayor Jim Kenney, who decided to call U.S. Rep. Bob Brady. Brady showed up, as did Sen. Bob Casey, but despite the efforts of two members of congress, Feinberg and the other attorneys weren’t allowed through.

That Customs and Border Patrol agents refused Brady and Casey has Feinberg concerned about the longer-term implications from the weekend’s events.

“The fact that they, as two members of Congress—two members of the Federal government—were not permitted to see detainees held by the very same federal government in their district is really very extraordinary,” he said. “To the extent we have a system of checks and balances, where the legislature is going to monitor and respond to conduct and actions and policy decisions of the executive branch, when that happens, that is reason for serious concern.”

Away from the airport, the ACLU-led team was working out a deal with the assistant United States attorney for the Eastern District of Pennsylvania to get the people held at the airport released and to not hold anyone else until the uncertainties surrounding the executive order were resolved. Earlier in the night, a federal judge in New York issued a stay suspending Trump’s executive order, which some (including the ACLU) argued was national in effect.

The detainees were eventually released and no one was stopped on Sunday. Elsewhere, though, similar incidents occurred. At Dulles International Airport in Northern Virginia, CBP officers ignored not just congressmen, but a federal court order, raising fears of a constitutional crisis: What happens if the executive branch ignores the judicial?

The constitutional conflict was provoked in part by the ambiguity contained in President Trump’s orders, says Cristina Rodriguez, a professor of constitutional law at Yale Law School.

“These executive orders, especially the immigration and refugee [order], leave a lot of operational details out,” said Rodriguez, “and if press reports are true—that these were drafted without input from the relevant agencies—then they would be particularly frustrating, perhaps useless documents as guidance for agency behavior.”

Besides the 90-day suspension of entry to the United States by nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, Trump’s executive order also suspended America’s refugee admissions program and called for enhanced screening standards for “individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.” During the campaign, Trump described this as “extreme vetting.”

But there’s already a lengthy process to gain entry to the U.S., especially for those seeking to stay long-term. That goes double for refugees, who must pass background checks, submit biometric identification (e.g. fingerprinting and eye scans), and pass lengthy, in-person interviews with U.S. Citizenship and Immigration Services officers.

According to one such USCIS vetting officer, no one in the agency seems to know what more there could be done. “We’re all anxiously and curiously waiting to see what this ‘extreme vetting’ is going to be all about, because we don’t know what exactly it’s going to be about,” said the officer, who spoke anonymously because they were not authorized to speak with the press. “There’s a lot of uncertainty, and, in a way, it’s chaotic as well.”

“There’s just still a lot of unknown, we’re not sure what is going on. So we’re waiting for upper management to let us know how this will effect our job and what we’re going to do,” the officer said, adding that they believed most fellow officers were “sad and pessimistic” to see the door slammed on refugees and asylum seekers who were going through the proper legal processes to immigrate to the United States. “We signed up for this job to help people to come to this country legally.”

On Monday, the acting attorney general ordered the Justice Department not to defend Trump’s executive order, a largely symbolic move by a holdover from the Obama administration likely to replaced soon. Still, the move, along with court orders from several federal judges to stay the order, only highlighted how profoundly uncommon a situation the nation now faces.

Back in Center City on Sunday, the Philadelphia chapter of the American Immigration Lawyers Association held an emergency meeting to “coordinate a response as immigration attorneys in the City of Philadelphia,” said AILA member Brennan Gian-Grasso.

With the crisis at the airport at least temporarily resolved, the AILA meeting focused on the ongoing challenges facing their immigrant clients and the profession as a whole. The AILA plans to train immigration attorneys on federal habeas corpus petitions (to have detainees released) and writs of mandamus (to force USCIS or other agencies to process visa applications).

More than any one, individual case, though, the AILA attorneys worried over media reports of CBP agents ignoring court orders. “That’s probably the worst fear, obviously,” said Katelyn Hufe, another AILA member in attendance Sunday, “that one branch of government is completely failing to acknowledge checks and balances, and doing whatever they want.”

The confusion stemming from the sudden executive orders cuts both ways, said Hufe. “I think the way these orders were implemented displays a fundamental lack of understanding with how our government works, and that leads to chaos in a lot of situations.

“But it also leads to an opportunity for us to really take a hold and challenge these orders as they come out.”

Professor Rodriguez echoed that sentiment. “Whats happening now is a good example of why an independent judiciary is absolutely crucial,” she said. “To the extent then these executive orders tread upon constitutional rights, the courts ought to be there and will be there to stop the president.”