Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 1 of 9 PageID# 103

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
TAREQ AQEL MOHAMMED AZIZ, et al.,
Petitioners,
v.
DONALD TRUMP, President of the United
States, et al.,
Respondents.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 1:17-cv-116

BRIEF IN SUPPORT
OF THE COMMONWEALTH OF VIRGINIA’S
MOTION FOR THE ISSUANCE OF A RULE TO SHOW CAUSE

Mark R. Herring
Attorney General of Virginia

Stuart A. Raphael (VSB No. 30380)
Solicitor General

Trevor S. Cox (VSB No. 78396)
Deputy Solicitor General
tcox@oag.state.va.us

Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7240 – Telephone
(804) 371-0200 – Facsimile
sraphael@oag.state.va.us

Matthew R. McGuire (VSB No. 84194)
Assistant Attorney General
mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

February 1, 2017

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 2 of 9 PageID# 104

The Commonwealth of Virginia respectfully requests the issuance of a rule to show cause
why respondents should not be held in contempt of this Court’s temporary restraining order
(TRO) entered on the evening of January 28, 2017. Contemporary news reports and first-hand
accounts indicate that officials of respondent Customs and Border Protection (CBP) did not
comply with the Court’s directive in paragraph (a) that “respondents shall permit lawyers access
to all legal permanent residents being detained at Dulles International Airport.” Moreover,
because such access was not provided and respondents have not disclosed, despite request,
whether any such persons were removed from the United States after they knew of the TRO, it
cannot be determined whether respondents complied with the prohibition on such removal in
paragraph (b). The Commonwealth has attempted since Sunday, January 29, to obtain that
information, but respondents have not answered. Under these circumstances, the Court should
require that respondents demonstrate their compliance with the TRO and show cause why they
are not in contempt.
STATEMENT OF FACTS
On the afternoon of Friday, January 27, 2017, President Trump issued an Executive
Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
(Dkt. 7-1.) Section 3(c) of the Executive Order, among other things, suspends for 90 days entry
of all immigrants and nonimmigrants from seven majority-Muslim countries: Iran, Iraq, Libya,
Somalia, Sudan, Syria, and Yemen. 1 Section 3(e) and (f) contemplate expanding the list of
banned countries based on future recommendations by the Secretary of Homeland Security.
Section 3(g) provides that “the Secretaries of State and Homeland Security may, on a case-by-

1

The order exempts persons traveling on diplomatic visas, North Atlantic Treaty Organization
visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas.

1

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 3 of 9 PageID# 105

case basis, and when in the national interest, issue visas or other immigration benefits to
nationals of countries for which visas and benefits are otherwise blocked.” The Executive Order
restricts entry by immigrants from the banned countries who have lawful permanent residence
(“green card”) status in the United States, as well as nonimmigrants traveling on student or work
visas (e.g., B-1, H-1B, L-1, O, F-1, F-2, J-1), and their family members traveling on authorized
visas (e.g., B-2, J-2, F-2).
Because the Executive Order was issued on a Friday afternoon without prior notice,
numerous persons from the seven banned majority-Muslim countries had already commenced
their travel to the United States in reliance on their U.S. green card or a valid student or work
visa, unaware of the Executive Order. Beginning Friday evening and continuing over the
weekend, hundreds of people appeared at international airports throughout the United States,
expecting the arrival of their friends and loved ones, only to discover that those arriving
passengers were being detained incommunicado by CBP. This led to spontaneous protests and
demonstrations at airports throughout the United States by persons demanding that the detainees
be allowed access to the many lawyers who had also gathered at the airports to provide pro bono
legal assistance to the detainees and their relatives. 2
Petitioners in this case filed their complaint on the evening of Saturday, January 28, on
behalf of two travelers from Yemen and sixty “John Doe” travelers who likewise had arrived
with valid credentials but had been detained by CBP at Dulles.

2

E.g., Protests Erupt at Airports Following Trump Travel Ban, N.Y. Times (Jan. 29, 2017, 2:12
A.M.), https://goo.gl/pKOHoR; Elise Viebeck and Michael Laris, Hundreds of lawyers descend
on airports to offer free help after Trump’s executive order, The Washington Post (Jan. 29,
2017), https://goo.gl/AiGZJ3; Betsy Woodruff, Trump’s Border Patrol Defies Judge, U.S.
Senator at Dulles Airport as His First Constitutional Crisis Unfolds, The Daily Beast (Jan. 29,
2017, 8:44 a.m.), https://goo.gl/unbtlN.

2

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 4 of 9 PageID# 106

At approximately 9:30 p.m., this Court issued the TRO ordering “that: a) respondents
shall permit lawyers access to all legal permanent residents being detained at Dulles International
Airport; [and] b) respondents are forbidden from removing petitioners—lawful permanent
residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.”
(Dkt. 3.) Shortly before that, the United States District Court for the Eastern District of New
York issued a nationwide TRO prohibiting CBP from removing green card and visa holders. 3
Upon information and belief, CBP officials received a copy of both orders through
multiple channels.
Later that evening, however, reports emerged from various sources that none of the
detainees was being permitted access to any of the lawyers gathered at Dulles to assist them, in
spite of the TRO. 4 At approximately 11:45 p.m., Senator Corey Booker arrived on the scene and
personally attempted to intercede with CBP officials, including presenting them with another
copy of the TRO. Booker reported that he was rebuffed: CBP “told me nothing, and it was
unacceptable . . . . I believe it’s a Constitutional crisis, where the executive branch is not abiding
by the law.” 5
On Sunday, January 29, at least five other members of Congress appeared at Dulles to
attempt to resolve the crisis and ensure compliance with the TRO: Representatives Robert C.
“Bobby” Scott (Va-3), Don Beyer (Va-8), Gerry Connolly (Va-11), Jamie Raskin (Md-8), and

3

Temporary Restraining Order, Darweesh v. Trump, No. 1:17-cv-480 (E.D.N.Y. Jan. 28, 2017),
ECF No. 8.
4

Woodruff, supra note 2.

5

Id.

3

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 5 of 9 PageID# 107

John Delaney (Md-6). 6 Congressman Beyer’s declaration describing the events is included with
this filing. He specifically went to the airport “in response to reports that CBP officials
enforcing the Executive Order were detaining travelers and, contrary to the TRO, were not
permitting them access to lawyers.” 7 He spent more than four hours at Dulles (from 1 p.m. to
5:30 p.m.) and describes the many people he saw, awaiting the arrival of their friends and family
members, as being “anxious, grief-stricken, and confused.” 8
Congressman Beyer recounts his unsuccessful efforts to find even one detainee who had
been allowed access to counsel:
Attorney after attorney complained to me that CBP would not
allow them access to the holding rooms where travelers may have
been detained. To my knowledge, not a single attorney was
permitted access to any detained traveler. My congressional
colleagues and I were also denied access to detainees. 9
He goes on to describe how CBP officials refused not only to meet with members of Congress
but to provide any assurance that they were complying with the TRO. 10 Congressman Beyer
“concluded (and characterized to others) that CBP’s continued enforcement of the Executive
Order amounted to a constitutional crisis: four members of Congress asked CBP officials to
enforce a federal court order, and we were all turned away.” 11
CBP’s apparent violation of the TRO is reflected in one instance described by
6

Local Congressmen Demanded to Speak with Customs and Border Protection at Dulles, Were
Refused, DCist (Jan. 29, 2017 2:43 p.m.),
http://dcist.com/2017/01/customs_and_border_protection_still.php
7

Beyer Decl. ¶ 5.

8

Id. ¶ 6.

9

Id. ¶ 7.

10

Id. ¶ 8.

11

Id. ¶ 9.

4

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 6 of 9 PageID# 108

Congressman Beyer. A detainee from Sudan with a valid green card was eventually released
after the congressmen’s insistence upon compliance with the TRO. Congressman Beyer
recounts that “[t]he deputy police chief who was our intermediary with CBP explained that CBP
had decided to release her and so no lawyer was necessary.” 12 Such reports are particularly
disturbing in light of the Aziz petitioners’ allegations in the Amended Complaint that they were
removed from the United States and coerced into signing documents that petitioners believe
waived their visa rights. Despite those disturbing reports, however, respondents have publicly
insisted that “[u]pon issuance of the court orders yesterday [Saturday], U.S. Customs and Border
Protection (CBP) immediately began taking steps to comply with the orders,” and that “[w]e are
and will remain in compliance with judicial orders.” 13
The Commonwealth of Virginia has independently attempted to determine which of its
residents have been detained or removed from the United States, and whether respondents have
complied with the access-to-counsel requirements of the TRO. On Saturday afternoon, the
Governor and Attorney General of Virginia both visited Dulles and witnessed firsthand the plight
of those awaiting the release of their friends and family members. On the evening of Sunday,
January 31, 2017, the Attorney General of Virginia sent a letter to respondents, delivering it by
email from the State Solicitor, at 8:55 p.m., to respondent Wayne Biondi and also to Dana
Boente, U.S. Attorney for the Eastern District of Virginia (and, as of the evening of January 30,
2017, the Acting Attorney General). (Ex. 1.) The Attorney General sought an accounting of the
number of Virginia residents detained and removed, an explanation of why respondents appear to

12

Id. ¶ 10.

13

DHS Statement On Compliance With Court Orders And The President’s Executive Order
(DHS Jan. 29, 2017), https://goo.gl/QEUC7R.

5

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 7 of 9 PageID# 109

have disobeyed the TRO, and the identities of any Virginia residents remaining in custody.
Attorney General Herring requested a response “as soon as practicable, but by no later
than February 1.” As of the filing of this motion, no response has been received.
THE COURT SHOULD ISSUE A RULE TO SHOW CAUSE
This Court’s temporary restraining order is an injunction that is enforceable by contempt.
Fed. R. Civ. P. 70(e). Respondent Department of Homeland Security does not assert that it was
not bound by the TRO. To the contrary, it claims that respondents “are and will remain in
compliance with the judicial orders.” 14 But that conclusory statement is refuted by the public
reporting of events on the ground at Dulles on Saturday evening and Sunday, as well as by
Congressman Beyer’s first-hand account.
Moreover, the Commonwealth has sought unsuccessfully to determine if respondents
have respected the rights of its Virginia residents, including abiding by the injunction against
removing persons from the United States after the TRO was issued and providing access to
counsel for those being held.
Because respondents have failed without explanation to answer these eminently
reasonable questions by members of Congress and the Attorney General of Virginia, it is
appropriate for this Court to require respondents to demonstrate their compliance. Respondents
should be required to file a written accounting of their compliance efforts by February 7. They
should be required to submit sworn statements addressing, at a minimum: (1) the time on January
28, 2017 that they received actual notice of the TRO in this case and in Darweesh; (2) the
number of air passengers on January 27, 28, and 29 arriving at Dulles International Airport with
lawful permanent residence status who were removed from the United States, both before and
14

DHS Statement, supra note 13.

6

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 8 of 9 PageID# 110

after receipt of actual notice of the TRO; (3) whether any such arrivals were denied prompt
access to counsel in light of reports that lawyers were refused such access and there appear to be
no reported cases of any such arriving passenger being granted such access; and (4) the name and
title of all government officials, if any, who instructed CBP personnel not to comply with the
TRO.
It should go without saying that compliance with a court order is fundamental to the rule
of law. As the Supreme Court and this Court have made clear:
We begin with the basic proposition that all orders and judgments
of courts must be complied with promptly. If a person to whom a
court directs an order believes that order is incorrect the remedy is
to appeal, but, absent a stay, he must comply promptly with the
order pending appeal. Persons who make private determinations of
the law and refuse to obey an order generally risk criminal
contempt even if the order is ultimately ruled incorrect. 15
Because respondents’ conduct and refusal to account for their actions last weekend
suggests disobedience of this Court’s TRO, the Court should require a written accounting of how
respondents actually complied. Given that the access-to-counsel requirement in the TRO is
continuing, it is essential to determine as quickly as possible that respondents have complied and
are complying.

15

Maness v. Meyers, 419 U.S. 449, 458 (1975); United States v. Al-Arian, No. 1:08cr131, 2008
WL 3843464, at *3 (E.D. Va. Aug. 14, 2008) (Brinkema, J.) (quoting Maness).

7

 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 9 of 9 PageID# 111

CONCLUSION
The Court should issue a rule to show cause in the form of the attached proposed order.
Respectfully submitted,
COMMONWEALTH OF VIRGINIA,
By:

/s/

Stuart A. Raphael (VSB No. 30380)
Solicitor General
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
(804) 786-7240 – Telephone
(804) 371-0200 – Facsimile
sraphael@oag.state.va.us
Mark R. Herring
Attorney General of Virginia
Trevor S. Cox (VSB No. 78396)
Deputy Solicitor General
tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194)
Assistant Attorney General
mmcguire@oag.state.va.us
Counsel for Commonwealth of Virginia

CERTIFICATE OF SERVICE
I certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court
using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of
record for Petitioners and Respondents.

By:

/s/

Stuart A. Raphael

8

 Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 1 of 4 PageID# 112

From:
To:
Cc:
Subject:
Date:
Attachments:
Importance:

Raphael, Stuart A.
Dana Boente (-@usdoj.gov); Wayne Biondi (-@cbp.dhs.gov)
@kaine.senate.gov; -@warner.senate.gov; - -@governor.virginia.gov;
-O"Holleran, Kevin C.
Letter from Virginia Attorney General Mark Herring
Sunday, January 29, 2017 8:54:43 PM
2017 01 29 Letter from AG Herring to CBP et al.pdf
High

Gentlemen:
 
Please see the attached letter from Virginia Attorney General Mark Herring.  I do not have an email
address for Secretary Kelly or Acting Commissioner McAleenan and would appreciate your
forwarding this letter to them.  A paper copy will follow tomorrow by regular mail.  Please let me
know if you have any questions or need any additional information.
 
Very truly yours,
 
Stuart A. Raphael
Solicitor General
Office of the Attorney General
202 North 9th Street
Richmond, Virginia 23219
(804) 786-7240 Office
(703) 626-9153 Mobile
SRaphael@oag.state.va.us
http://www.ag.virginia.gov

 

 

Exhibit 1--Va. Mot. for Rule to Show Cause

 Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 2 of 4 PageID# 113

COMMONWEALTH of VIRGINIA
Office of the Attorney General
202 North 9th Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120

Mark R. Herring
Attorney General

January 29, 2017
The Honorable John Kelly
Secretary
Department of Homeland Security
Washington, D.C. 20528

The Honorable Dana J. Boente
U.S. Attorney, Eastern District of Virginia
2100 Jamieson Ave.
Alexandria, VA 22314

Kevin K. McAleenan
Acting Commissioner
U.S. Customs & Border Protection
Washington, D.C. 20528

Wayne Biondi
Port Director of the Area Port of Washington
Dulles, U.S. Customs & Border Protection
Washington, D.C. 20528

Re: This weekend’s events at Dulles International Airport
Gentlemen:
I am deeply concerned about events at Dulles International Airport on January 27, 28,
and 29, 2017, in which U.S. Customs & Border Protection personnel (“CBP”) detained air
passengers who arrived at the airport following issuance by President Trump of his Executive
Order dated January 27, 2017, entitled “Protecting the Nation From Foreign Terrorist Entry Into
the United States.”
On Saturday, January 28, at approximately 9:30 p.m., the United States District Court for
the Eastern District of Virginia issued a temporary restraining order (“TRO”) in Aziz v. Trump,
directed against all respondents: President Trump; the Department of Homeland Security; U.S.
Customs and Border Protection; Secretary Kelly; Acting Commissioner McAleenan; and Port
Director Biondi. The TRO enjoined respondents: (1) to “permit lawyers access to all legal
permanent residents being detained at Dulles International Airport”; and (2) to refrain from
“removing petitioners—lawful permanent residents at Dulles International Airport—for a period
of 7 days from the issuance of this Order.” It was widely reported on Saturday night and
yesterday that CBP officials refused to permit such access to counsel, even after receiving notice
of the TRO.
Although many aspects of these events are disturbing, I am particularly troubled that
Virginia residents were detained, or returned to the country from which their travel originated,

Exhibit 1--Va. Mot. for Rule to Show Cause

 Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 3 of 4 PageID# 114
January 29, 2017
Page 2
despite having been previously issued lawful permanent residence status or lawful student or
work visas. Accordingly, I respectfully request that you provide the following information:
Lawful Permanent Residents
1) How many persons with lawful permanent resident status were detained at Dulles on
January 27, 28, and 29? Of those detained, how many were removed from the United
States before CBP personnel at Dulles received actual notice of the TRO? How many
were removed after such notice was received? What time on January 28 did CBP receive
actual notice of the TRO and how and to whom was that notice provided?
2) Why did the respondents in Aziz disobey the TRO’s directive to permit lawyers to have
access to the detained lawful permanent residents? Please provide the names and titles of
all officials responsible for that decision.
3) Of those lawful permanent residents detained at Dulles on January 27, 28, or 29, how
many showed a residence address in the Commonwealth of Virginia? Please provide the
name and address of such Virginia residents. For those who were removed from the
United States, please state the date the person was removed and identify the country to
which that person was removed. If CBP or Immigrations and Customs Enforcement
(“ICE”) continues to detain any such Virginia resident, please state the place where that
Virginia resident is currently detained.
Travelers with valid student or work visas
4) How many persons with valid student or work visas were detained at Dulles on January
27, 28, and 29 pursuant to the authority of the Executive Order? Of those detained, how
many showed a residence address in the Commonwealth of Virginia? Of those with a
Virginia residence, how many were removed from the United States and how many were
permitted entry?
5) Does the CBP continue to detain any Virginia residents who were traveling with a valid
student or work visa? If so, please provide the names and addresses of such Virginia
residents, their nationality, and the type of visa on which the person was traveling.
I would appreciate your providing this information as soon as practicable, but by no later
than February 1. If you have any questions about this request, please feel free to speak with
Solicitor General, Stuart A. Raphael (804-786-7240).
Thank you for your prompt attention to this matter.
Sincerely,

Mark R. Herring

Exhibit 1--Va. Mot. for Rule to Show Cause

 Case 1:17-cv-00116-LMB-TCB Document 19-1 Filed 02/01/17 Page 4 of 4 PageID# 115
January 29, 2017
Page 3
cc:

The Hon. Terence R. McAuliffe, Governor
The Hon. Mark Warner, Senator
The Hon. Tim Kaine, Senator
Stuart A. Raphael, Solicitor General

Exhibit 1--Va. Mot. for Rule to Show Cause