The Supreme Court and Deportations

Imagine that while in the course of your daily routine, maybe walking your dog, picking up a child from school, leaving work, going to the grocery store, or any other mundane activity, you are seized by a group of masked individuals, tossed into an unmarked van, and whisked to a detention center. Within hours, you are moved to another detention center and, shortly after that, transferred to a third detention center. Somewhere along the way, you are told that you will be deported to El Salvador, where you will be confined to the notorious Terrorism Confinement Center (CECOT). You are also informed that you have the right to file a habeas petition to challenge your deportation. It is entirely possible that you don't even know what a habeas petition is, let alone how to file one. Nobody may even know that you are missing or, if they do, where you are being held. If friends or family manage to find a lawyer willing to help, the lawyer won't know where to file a habeas petition because your location is unknown. Before you are able to obtain a court appearance, you are put on an airplane to El Salvador. Then, days later, lawyers present evidence that you were wrongly identified as a member of the violent Venezuelan gang, Tren de Aragua, and should not have been deported. The government admits that your deportation was in error but claims no ability to have you returned from a prison that is under foreign control. The government's reaction is essentially "too bad, so sad" or, more directly, "it sucks to be you."

The above scenario is not the plot of a dystopian novel or a story of what might happen to dissidents in North Korea or Russia. It is, in fact, what is possible in today's United States and something that has already happened only without notification of the right to file a habeas petition. Moreover, the United States Supreme Court has just given its stamp of approval to this process. In a case arising from the invocation by Trump of the Alien Enemies Act, that included a declaration that members of Tren de Aragua are alien enemies and therefore subject to deportation, the Supreme Court allowed such deportations to continue requiring only that the deportees be provided notice of their potential removal and allowed reasonable time to seek habeas relief. It is important to understand that while the Trump administration claims that it is planning to only deport members of Tren de Aragua, literally anyone — even U.S. citizens — is at risk because of the Trump administration's "guilty until proven innocent" approach. If a U.S. citizen is wrongly detained, he could likely prove his citizenship during a hearing in response to a habeas petition. But, if the individual lacks the wherewithal to orchestrate such a petition, there will be no hearing and the citizen will find himself in CECOT.

Let me step back a bit and discuss what is meant by "habeas corpus", a "writ of habeas corpus", and a "habeas petition." I know that a significant number of DCUM readers are attorneys who know more about this than I do, and they are welcome to correct any of my errors in the comments, but this is for those who are not familiar with the terms. "Habeas corpus" translates literally as "you should have the body." It is a centuries-old concept under which courts can order that a detainee be brought to court. In the United States, a "writ of habeas corpus" is an order by a court requiring governmental officials to produce in court someone held in custody. A "habeas petition" is simply a request for a writ of habeas corpus. A habeas petition is generally used as a mechanism to challenge the detention of an individual. According to U.S. law, habeas petitions must be filed in the district in which the subject in custody is being held.

In the case of the deportations already orchestrated by the Trump administration, the deportees were not provided with any sort of judicial review. It has since been revealed that many of those deported are likely not members of Tren de Aragua and, therefore, should not have been sent to El Salvador. CBS's "60 Minutes" found that only "22% of the men on the list have criminal records here in the United States or abroad. The vast majority are for non-violent offenses like theft, shoplifting, and trespassing." The Trump administration routinely describes those it deported as violent gang members, but, in most cases, the evidence does not support that description. Among those deported are a former professional soccer player whose "Real Madrid" tattoo was assumed to be a gang emblem by Immigration and Customs Enforcement agents, a gay make-up artist who had tattoos of crowns — one labeled "Mom" and the other "Dad" — and a Maryland father who was identified as a gang member due to wearing a Chicago Bulls shirt and an accusation by a government informant whom the police didn't believe. The Maryland man was under a "withholding of removal" order, and even the government admits that he should not have been deported. However, the government contends that it does not have the ability to have him returned. In the process of the litigation of whether these deportations should be allowed, the government conceded that there should be a right to judicial review. Lawyers for the deportees sought to have the matter decided under the auspices of the Administrative Procedure Act. However, the Supreme Court ruled that the claims belong in habeas corpus proceedings. As the Court decided:

"More specifically, in this context, AEA [Alien Enemies Act] detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

On the face of it, this appears to be a defeat for the Trump administration. When the masked agents grab someone off the street, that individual must be notified that he is subject to deportation and given time to file a habeas petition. If he was wrongly detained, that will come out in the court hearing. However, reality differs significantly from theory in this case. First of all, many of those detained may not have lawyers or anyone to help file a habeas petition on their behalf. Second, the Supreme Court insisted that such petitions must be filed in the proper venue, meaning the district in which the individual is being held. ICE has routinely played shell games with detainees, moving them from prison to prison without notification. The official locator database is often many hours behind, leading lawyers to file in one district after their client has been moved to another. In many cases, lawyers simply can't find their clients. This also allows the government to "judge shop" and move the detainees to prisons located in districts where friendly judges have jurisdiction. These districts are often a long distance from where the individual was detained, meaning that his lawyer — if he has one — will have logistical difficulties working from long distance.

Due to such legal obstacles, lawyers for those facing deportation sought to have the matter adjudicated under the Administrative Procedure Act. Habeas, they argue, is meant to challenge detentions. But, for the most part, the individual's detention is not being challenged. Rather, it is the deportations that are at issue. If deportations were stopped, detention could still continue. The majority of the Supreme Court rejected this argument and held that habeas is the proper mechanism.

It is also important to understand that the Supreme Court did not rule on underlying issues such as whether the Alien Enemies Act can even be applied to members of Tren de Aragua. Lawyers for the deportees will be able to litigate such issues, but they will have to do so during habeas hearings in unfriendly courts. Instead of one case in Washington, DC, the government will face potentially hundreds of individual cases in courts likely to be spread across the South. Given the government's past behavior, it may even move the detainees while they are in the process of seeking judicial review, meaning they have to refile in another court. The Supreme Court decision has enabled the Trump administration to engage in a legal process of circumventing the law rather than following it.

Let me stress: the Supreme Court decision does not require judicial review. As a reminder, judicial review is where someone wrongly detained can correct the record. It is where errors can be identified and wrongs can be righted. The Supreme Court ruled only that those detained have a right to seek judicial review. If they don't ask for a review, they won't get one. More importantly, even if they try to ask but are unable to do so or ask incorrectly, they won't get a review either. Far from granting detainees a right of judicial review, it actually grants them only the right to navigate a complex obstacle course that the government increasingly makes more difficult. Realistically, the decision offers nothing at all to most of those detained or likely to be detained by the government under the Alien Enemies Act.

The scenario with which I opened this post was not contrived merely from my imagination. In her dissent, Justice Sonia Sotomayor described a very similar possibility:

"The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them...The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise."

I would argue that Sotomayor does not go far enough. She limits her concern to the government "unlawfully" denying judicial review. But, as I have explained, the majority decision actually allows for legal denial of such review. The government can legally create insurmountable obstacles to accessing the proper courts by those detained. All evidence so far suggests that this is exactly what the Trump administration will do. We have reached a point of time in America's history in which it behooves all of us, citizen and noncitizen alike, to have contact information for an attorney on our person at all times. An inability to contact a lawyer could literally result in being mistakenly — if not purposely — imprisoned in CECOT.

Update: Fernando Rodriguez, Jr, U.S. District Judge for Southern District of Texas has just issued a temporary restraining order prohibiting the deportation of any detainees within his district to El Salvador. Rodriguez is a Trump-appointee, and ruled in relation to a habeas petition filed by three prisoners held in the El Valle Detention Center in Raymondville, Texas. Rodriguez cited the Supreme Court ruling that I discussed above. Essentially, this is the prisoners doing what the Supreme Court said that they should do. I would bet money that the Trump administration will not transfer any additional Venezuelan detainees to El Valle.

Update 2: U.S. District Judge Alvin Hellerstein, who has jurisdiction over the Southern District of New York, issued a similar temporary restraining order blocking deportations of suspected Tren de Aragua members being held in his district. Apparently the American Civil Liberties Union filed both of these cases and plans to go district by district attempting to obtain similar temporary restraining orders. Hellerstein was a Clinton appointee.