Challenging the Refugee and Travel Ban
How Yale Law students, faculty, and alumni mobilized to fight the executive order on immigration
It seemed like a typical Friday night until Professor Mike Wishnie ’93 got an alarming phone call saying that people were being detained at John F. Kennedy airport hours after an executive order from the President on January 27, 2017, banned certain refugees and immigrants from entering the U.S.
Within minutes, Wishnie heard from two Yale Law alumni, Rebecca Heller ’10, of the International Refugee Assistance Project (IRAP), and Justin Cox ’08, of the National Immigration Law Center (NILC), and realized that it was vital to take swift legal action.
An hour later, after being notified of the developments, a team of students and supervisors from the Worker & Immigrant Rights Advocacy Clinic (WIRAC) connected to get to work on a legal challenge. WIRAC is part of The Jerome N. Frank Legal Services Organization (LSO) at Yale Law School, which provides legal representation to individuals and organizations in need of legal services who are unable to afford private attorneys.
By midnight, eight WIRAC students, Professor Wishnie, Professor Muneer Ahmad, Visiting Clinical Associate Professor Marisol Orihuela ’08, Visiting Clinical Associate Professor Elora Mukherjee ’05, and Fellow Ruben Loyo were on the phone with lawyers from the American Civil Liberties Union (ACLU), IRAP, and NILC, deciding how to approach what was rapidly becoming a crisis. Without quick legal action, a number of those detained could be sent out of the country as early as 6 a.m. the next day.
“Around midnight we knew we had to write a habeas petition with nationwide class action allegations, research and draft a motion for class certification, and get that on file before 6 a.m.,” said Wishnie, speaking to a group from the Yale community during an event on January 31, 2017. “And these guys did that.”
“That started everything. That was the sprint to the starting line,” said Wishnie. The legal action was the first to be filed in response to President Trump’s executive order.
By early Saturday morning, more than 20 students and clinic supervisors filled the basement offices that house the clinics at Yale Law School, armed with laptops and phones ready to continue the work through the weekend.
The named petitioners in this case, Hameed Khalid Darweesh, an Iraqi husband and father of three, and Haider Sameer Abdulkhaleq Alshawi, an Iraqi husband and father, were detained after arriving at JFK Airport in New York City on January 27, 2017. Both had been approved for travel and entry to the United States and were flying with valid documentation. They both had also assisted the U.S. Military and government and had gone through extensive vetting prior to their flight.
In order to get a judge to hear the case over the weekend, the clinic also filed an emergency motion for a nationwide stay. Students worked throughout Saturday to draft the 25-page motion, which was filed shortly after 4 p.m. Later that afternoon, they learned that the duty judge, on call that weekend, would hold an emergency hearing at the federal courthouse in Brooklyn at 7:30 p.m. ACLU lawyers in New York rushed to Brooklyn, where the courtroom was packed with media and community supporters. The students in New Haven, nervously waiting for news, began to adapt the habeas petition they had filed to create templates to share across the country for those detained at airports. At the same time, hundreds of lawyers had fanned out to airports around the country to help those detained, along with thousands of people who participated in large, spontaneous protests at the same airports.
At around 9:00 p.m., U.S. District Court Judge Ann Donnelly ordered the government not to remove, among others, any “individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.” It was a major victory for the clinic and its clients, co-counsel, and allies.
Darweesh and Alshawi were both eventually released from custody, and the stay was filed to secure the rights of at least a hundred other individuals who had been or will be detained, held, and—in some cases—returned to their countries of origin nationwide.
The volunteer IRAP attorney who had spent many years representing Mr. Darweesh in the effort to secure his visa, and who negotiated through the night at JFK for Darweesh’s release, was Jonathan Polonsky ’82, of Kilpatrick Townsend, a former LSO student and member of the LSO Board.
“But then when the news came out at 9 p.m., that not only had she granted the stay, but that it was a nationwide injunction, it was absolutely euphoric in the LSO basement,” said Ngo.
“We cheered and patted ourselves on the back I guess for maybe five minutes before we started realizing that that was just the beginning.”
The challenge continued as students and faculty worked around the clock with legal partners throughout the country to deal with the chaos that the executive order had caused.
Back at the Law School, students had formed a “war room” assisting with a hurricane of emails, calls, and texts for help from airports around the country. In one case, a woman who was a Fulbright Scholar from Iran pursuing her Ph.D. in New York was detained and had been put back on a flight to Iran leaving at 1 a.m. Sunday morning.
“So we started calling the airline, calling TSA [Transportation Security Administration], calling CBP [Customs and Border Protection], trying our best to basically intervene,” recalled Ngo. “And after a lot of yelling on the phone, we got the plane turned around.”
The clinic also began distributing the sample habeas petition they had drafted earlier in the day to assist other lawyers volunteering around the country. The template was used by lawyers to file dozens of individual petitions around the country.
The clinic is now working to prepare a brief on the case that is due in court on February 13 while simultaneously dealing with ongoing issues stemming from the fallout of the executive order. As information continues to come out, the clinic is working to help those who were unlawfully detained after the court’s order was released and collaborate with other organizations to gear up for what comes next.
Reflecting on an extraordinary series of events, Wishnie said that while he initially felt that a Friday night order was terrible timing, he realized that having this happen over the weekend was a blessing in disguise.
“I now think what beautiful timing this was for us because so many people were able to mobilize,” said Wishnie.
During the community event Tuesday, Professor Ahmad outlined the three executive orders from the Trump administration affecting immigration, analyzing in detail the refugee and Muslim ban. Ahmad said that it was important to understand the broad implications of what took place with this executive order.
“This executive order relating to the refugee and Muslim ban is part of a broader systemic program which I think we should understand as an attack on refugees, immigrants, and Muslims more broadly,” said Ahmad. “Part of what we see in this executive order is a conflation of Syrian refugees, refugees, Islam, and terrorism.”
Dean Robert C. Post ’77 also spoke at the event thanking the team of students and faculty who rallied around the clock to challenge the executive order and issuing a strong statement of unity for the community and the country.
“We are a nation founded on the idea of tolerance, on the idea of respect for the dignity of the individual, on the rule of law, on religious freedom, and this executive order flies in the face of all of that,” said Post.
Yusuf Joseph Saei ’18 spoke about what students and members of the Yale community could do to support the ongoing challenge to the immigration executive orders. He noted the importance of staying engaged, speaking to elected officials, and working with local organizations on the ground. He also expressed gratitude to be part of the Yale Law School community.
“These are really challenging times for the country, and if these are the times we’re in, I’m really happy to be in this community and really happy we are all together,” said Saei. “I hope we can live in defiance of all that is evil around us, that we can generate a renewed and strengthened protocol for truth telling in the age of Trump, and I hope that we find and cultivate the indestructible qualities within each of us that help us act swiftly and fearlessly.”
Professor Wishnie closed the event with impassioned words about what each of us can do to help stand up for justice.
“I don’t know what times we are living in anymore,” said Wishnie. “This is chaotic, to me it is frightening, it is certainly unclear what the next hour will bring—let alone days or weeks, but I conclude two things. One, law matters… There is a role for lawyers to represent clients, to challenge authority, to hold it accountable and insist that it justify itself. And second, law alone is not enough. Papers and briefs and motions are part of the response, but law alone cannot meet the challenges of the times we are in.”
“I’m glad to be part of the response,” added Wishnie. “As much as there is coming at us, for each of us, there is something we can do. The past few day’s events just confirm that for me.”