This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
What on earth is happening at the airports? The answer is, at least in the first instance, not a matter of law, but policy.
The Trump administration is using existing legal authority in wholly novel and frightening ways. In so doing, the administration may succeed in its aim of raising barriers to admission, at least in the short term — but it may hinder its own objectives in the long term, by creating adverse legal precedents when its policies are challenged. Time will tell.
First, the legal landscape, which pre-existed the Trump administration. The airport is a border zone. At the border, CBP agents man a metaphorical wall — a gatehouse, if you will — and apply their training to decide who may or may not enter. Mere possession of proper entry papers guarantees nothing. For example, a tourist holding a visitor visa may be refused entry if the inspector believes that the tourist intends to work illegally. A green card holder can have the green card stripped — and even be detained, pending deportation proceedings — if the inspector believes that the green card holder is deportable, for criminal or other reasons.
Now, the policy. The Trump administration has turned every knob up to eleven in the inspection process. Here are a few examples:
- A tourist who (allegedly) confessed that she intended to do a free tattoo for a friend in exchange for some clothes from a friend of hers — well, she was found to be seeking unauthorized employment in the barter economy. She was detained for weeks, then deported.
- A lawful permanent resident who (allegedly) was once charged with (but not convicted of) misdemeanor drug charges has been detained since March following an airport encounter.
- A Russian scientist leading a Harvard lab, traveling with (allegedly) improperly labelled frog eggs, was arrested and has been detained for more than two months. She is an opponent of the Putin regime, and rightfully fears being deported back to Russia.
- A physician holding a valid H-1B visa who (allegedly) admitted to attending the funeral of Hassan Nasrallah was detained and deported.
- Disturbingly, there have been at least two incidents of U.S. citizen lawyers being (allegedly) detained at the border. In one of those incidents, the attorney was pressured to turn over his phone for a search, despite the fact that his phone contained reams of confidential client information.
This behavior has been widely reported, but it is also disputed; CBP says that media coverage of the examples described above is exaggerated or otherwise unreliable, and the truth of each of these claims is unclear. What is clear is that the Trump administration has turned up the heat at airports and border posts across the country. As these events continue, we expect that legal challenges will be brought.
Unlike the challenges to other Trump administration immigration initiatives — like the executive order purporting to ban birthright citizenship, or the administration’s efforts to summarily deport alleged members of the Tren de Aragua gang, legal challenges to port of entry enforcement will take longer to be filed. It takes longer to gather the evidence, and the procedural rights of those applying for admission are less substantial than the rights of those already present in the interior. But bad policy, just like good policy, requires rules.
Those rules will be documented, and maintaining those rules produces still more paper: emails, memoranda, messages, and (eventually) depositions and live testimony; in short, evidence, which is just what the courts will weigh in their adjudication of whether these new policies comply with U.S. law.
