Immigration attorneys in Southern California have told The Electronic Intifada that the US Marshals Service is failing to enforce federal court orders against the Customs and Border Protection agency at LAX, Los Angeles International Airport.
The development comes after several days of reports that Customs and Border Protection has been violating nationwide court orders suspending key provisions of US President Donald Trump’s executive order, which many are calling a Muslim ban.
This represents a potential breakdown in the division of powers: the US Marshals Service, according to the Judiciary Act of 1789, is obligated to serve as the enforcement arm of the federal courts.
After Trump signed the executive order last Friday, closing the border to refugees and barring entry to potentially hundreds of thousands of people with valid US visas and permanent resident cards from seven Muslim-majority countries, civil rights attorneys and state governments around the country moved to file lawsuits against the measure.
They argue it violates constitutional guarantees of due process and equal protection under the law.
On Saturday night, as thousands of people gathered to protest the executive order at airports across the country, a federal judge in Brooklyn issued a nationwide partial stay that temporarily bars deportation of persons with a valid US visa.
The next day, a Boston court handed down a more expansive stay, ordering that no one who is legally authorized to enter the US be detained or removed until 4 February.
But over the weekend, there were reports from around the country that officers from Customs and Border Protection, the Department of Homeland Security agency that inspects all international travelers at ports of entry, were failing to comply with court orders.
On Tuesday, CBP published a statement that seems to add more confusion. It claims to have taken immediate steps to comply with the court orders, while also implementing Trump’s executive order.
It also states that the entry ban could still apply to green card holders – legal permanent residents – from the seven countries, contradicting previous statements by the White House that this group would be exempt.
CBP said that “lawful permanent resident status will be a dispositive factor in our case-by-case determinations” of who can enter, indicating that the agency still asserted the authority to deny entry to green card holders.
Though the statement includes a few statistics on how many waivers CBP has granted travelers with green cards and visas, it does not reveal the number of people it has detained or deported.
With such little transparency, only fragments of what is happening at ports of entry are reaching the public.
At LAX, at least one foreign national with authorization to enter the US was deported, in violation of the court orders.
The Intercept reports that when two California members of Congress, Rep. Judy Chu and Rep. Nanette Barragan, came to LAX and asked to speak with CBP officials, they were refused.
When the CBP officials were asked who they were reporting to, they said, “Donald J. Trump,” and hung up, according to The Intercept.
The American Civil Liberties Union of Southern California and the law office of Stacy Tolchin petitioned the court on behalf of a man who was denied entry despite having a valid visa. After the petition was filed, he was deported on a plane to Dubai.
On Sunday, 29 January, Judge Dolly Gee ordered the government to allow him to return to the US, and set a follow-up hearing for 10 February.
Refusing to accept court order
But the border officers at LAX had already defied two court orders, and immigration lawyers feared they would defy Judge Gee’s order as well, so a group of attorneys began pressuring the US Marshals office in Southern California to enforce the court orders.
The New York court specifically ordered the US Marshals to enforce its ruling.
On Monday morning, a group of immigration lawyers went to the US Marshals office to serve them with the court order instructing them to ensure CBP and federal agencies comply with the judicial decisions.
Laura Riley, one of the attorneys there, told The Electronic Intifada that it is only necessary to invoke the US Marshals when there’s evidence of noncompliance.
But the US Marshal’s office informed the team that it had “been instructed by its Office of the General Counsel to await instruction from the US Attorney’s office.”
The US Attorney is a federal prosecutor who answers to the Department of Justice – the executive branch.
Faith Nouri, one of the lawyers coordinating the effort, told The Electronic Intifada that she then contacted a US Attorney in Southern California who agreed to accept the court order on behalf of the US Marshals.
Nouri kept the identity of the US Attorney anonymous because she does not want him to face repercussions.
Nouri asked Riley and her colleagues to serve the unnamed US Attorney the court order.
When Riley arrived, she said the US Attorney was poised to accept the court order, “But in the middle of our conversation, the person we were talking to was called away.”
The US Attorney came back and informed Riley that he could no longer accept the court order.
Nouri said that the US Attorney sent a follow-up email to her, informing her that he would no longer be able to assist.
The US Attorney did not say who had instructed the office not to accept the court orders.
Starting to comply?
“The underlying, real issue here is that these government agencies are not complying with the judicial branch,” Riley told The Electronic Intifada.
“Nor are they being transparent with attorneys, so we don’t know who is being detained or removed.”
Riley said she cannot say if anyone else has been deported since Judge Gee’s decision.
Nouri was subsequently advised by the US Marshals office to contact the Department of Justice.
She was able to speak with a person who has been assigned to deal with CBP.
Nouri says civil servants, like US Marshals, are being “very cautious,” and they “feel that they cannot do their jobs, because they are getting pressure from higher up.”
Trump summarily fired Acting US Attorney General Sally Yates, the top official at the Department of Justice, when she announced earlier this week that she would not defend his executive order in court.
A US Marshals spokesperson told The Electronic Intifada on Wednesday that marshals could not take any action based on the court orders issued over the weekend because they were not specific enough.
According to the spokesperson, the US Marshals cannot determine if the court orders have been violated, and must await further instructions from a judge.
There are two status hearings for the New York and Boston cases scheduled for Thursday and Friday. The spokesperson said these hearings should determine if there have been violations, and how the marshals might assist in their implementation.
The spokesperson added that there was no reason to serve the US Marshals with the court order – as the attorneys in Southern California attempted to do – because the Department of Homeland Security had already published a statement saying agents would comply.
The 29 January statement says CBP would enforce Trump’s executive order and comply with the courts. In subsequent statements, Secretary of Homeland Security John Kelly claimed CBP immediately began taking steps to act in compliance.
A spokesperson for the Department of Justice told The Electronic Intifada on Wednesday that it had “notified and provided guidance” to CBP and the US Marshals with regards to the Brooklyn and Boston court orders.
There is no clear precedent for the federal government and its agencies defying a judge’s order. But in such cases there is, in theory, an enforcement mechanism through the US Marshals.
In a 30 January Slate article examining the implications of federal agencies defying a court order, Ari Ezra Waldman, the director of the Innovation Center for Law and Technology at New York Law School, imagines the US Marshals could be pitted against CBP.
“This is what sets us up for a darker, dangerous turn,” he writes. But so far, the US Marshals appear to be allowing CBP to flout the courts.