WASHINGTON ― The Trump administration claims it is not currently detaining anyone under the president’s controversial anti-immigration executive order. But the government is not counting those being questioned at airports, according to an email sent by a government lawyer earlier this week and shared with The Huffington Post. Such questioning can last for hours.
A federal judge in Brooklyn on Saturday directed the government to give the American Civil Liberties Union a “list of people that are detained” as a result of President Donald Trump’s executive order, which temporarily bans all refugees and more than 200 million nationals of seven Muslim-majority countries from entering the United States, and indefinitely bars Syrian refugees. The ACLU and other civil rights groups are challenging the executive order in court.
In response, a government lawyer sent the ACLU a five-paragraph email stating that Customs and Border Protection and Immigration and Customs Enforcement authorities weren’t currently detaining anyone as far as they knew under the order. But the CBP count did not include people “who are being processed at a port of entry,” the attorney noted.
People coming into the United States through airports and other entry points may still be subject to additional screening. But the Department of Homeland Security said Tuesday that “processing and secondary” screening does not qualify as detention. “The green-card holders that are coming in, it’s a minor delay,” an agency spokeswoman told U.S. News & World Report. “To call it detained is way overstating it.”
The CBP also updated its website on Thursday to note that it is not holding anyone in custody solely based on the executive order, but that “all individuals who arrive in the United States are subject to inspection.”
Although the screening itself isn’t new, far more people — including many lawful permanent residents, also known as green-card holders — have reported being held at airports for hours since Trump’s executive order. On Monday, three days after the order was signed, Trump acknowledged on Twitter that 109 people were “detained and held for questioning.” But that number doesn’t include the hundreds of additional people who were inconvenienced and forced to obtain special waivers to enter the country.
Some people held under the order said they spent many hours in custody. A woman returning from Iran with her infant son was reportedly held for more than 12 hours at Los Angeles International Airport. A former Iraqi interpreter for the U.S. Army was separated from his wife and children for more than 19 hours. A Sudanese student who holds a green card, was briefly handcuffed at John F. Kennedy International Airport in New York. She called the experience “humiliating.”
“When you’re not free to go and when you’re being coerced to provide information, this is detention,” Sirine Shebaya, a civil rights attorney in Washington, D.C., told HuffPost. “It’s actually a big fat lie to say that nobody is being detained at Dulles.”
At Washington Dulles International Airport in Virginia, customs and border officials on Saturday did not allow attorneys to see people — including green-card holders — who were being detained, defying a court order that required authorities to do so. When Sen. Cory Booker (D-N.J.) attempted to meet with CBP officials at Dulles late Saturday night, he was told by an intermediary that no one was being detained ― under the CBP’s definition of detention ― and that anybody in secondary screening would be released soon.
“The official word is no one is being detained,” Rep. Don Beyer (D-Va.) told HuffPost on Sunday. But given the length of time that many travelers were being held for questions, it was hard not to see much of that treatment as a form of detention, he added.
Booker sent a letter to the Department of Homeland Security on Monday asking how many individuals had not been admitted to the U.S. since the order was issued and how the government would ensure that detained individuals had access to counsel. He asked for a response by Wednesday evening. As of Thursday morning, “we have yet to receive any answer from [Homeland Security] in response to our many questions,” a Booker spokesperson told HuffPost.
The response the Trump administration offered is “not sufficient,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the federal case in Brooklyn. The ACLU wants to know “who was detained, is detained,” and to receive “daily updates,” Gelernt said. The group is also not buying the distinction between detained and processed, he said, because ACLU attorneys have heard of people being “processed” for more than a day.
Gelernt said that the Trump administration did not send any documentation to back up its email. He expects to receive an update at a case status conference on Thursday afternoon.
A spokesperson for the CBP declined to comment on the letter sent to the ACLU and did not respond to a request for comment about the situation at Dulles.
When the federal judge on Saturday asked government attorney Susan Riley whether she could provide a list of detainees, Riley didn’t sound optimistic. “That is actually more difficult than it sounds,” she said Saturday. “People are coming in all the time.”
In the email this week, the other government attorney noted that the administration is working on providing additional updates and that the judge directed the parties to work together. “If you are aware of any individuals being unlawfully detained, please let us know,” he wrote. “We will find out what’s going on.”