More Immigration Updates

Today I am going to provide updates on some of the immigration cases about which I have previously written. I tend to fixate on immigration because I see it as the leading indicator of where our political system is going. As I have written before, authoritarianism is frequently introduced through the "boiling frog" method in which it happens gradually and is not immediately obvious. In the case of the United States, steps against migrants — a marginalized community that often has little support — can often be taken with limited resistance. Once the authoritarian methods used against immigrants are normalized, they can be expanded to be used against American citizens. Even before that step is reached, there is the chance that U.S. citizens will be caught up in the anti-immigrant measures. The administration of cult leader, convicted felon, and failed President Donald Trump's opposition to due process means that an American citizen might not have the opportunity to prove citizenship. Indeed, there have already been cases of U.S. citizens jailed after they were wrongly identified as non-citizens. Therefore, I consider immigration topics to be a barometer for the state of our political system

Kilmar Abrego Garcia, the Maryland man who was deported to El Salvador when the Trump administration made an "administrative error" remains in El Salvador, though reports suggest that he has been moved from the Terrorism Confinement Center (CECOT) to another prison where conditions may be better. On Monday, his lawyers filed a memorandum in the ongoing case in the District Court of Maryland. Previously, this case reached the U.S. Supreme Court where, in a 9-0 decision, the Court ruled that the Trump administration must "facilitate" Abrego Garcia's return to the United States. The case was then returned to the district court where Judge Paula Xinis has held hearings concerning the government's compliance with the Supreme Court decision. Xinis authorized an expedited discovery to determine whether the government was abiding by the decision, but the government has not been cooperating. Instead, the government has engaged in a number of delaying tactics. In addition, the government has claimed a state secrets privilege and a deliberative process objection. Abrego Garcia's lawyers contested both of these claims, suggesting that they were not valid in this case. Xinis has previously denied many of the government's state secrets claims and will likely do so again. My expectation is that Xinis will eventually determine that the government is not in compliance with the Supreme Court ruling and will begin contempt procedures.

We also learned recently that a second man had been wrongly sent to El Salvador. This individual, only identified as "Cristian", is a 20-year-old Venezuelan man. Christian was part of a court settlement that required his asylum application be processed. Until the application was processed, Christian could not be deported. The judge in the case, U.S. District Judge Stephanie Gallagher in Baltimore, ordered that the Trump administration facilitate Christian's return to the United States. This case is obviously very similar to that of Abrego Garcia's and, as in that case, the government does not appear to be very eager to comply with the judge's decision.

There was good news in the case of Rümeysa Öztürk, the Tufts University student who was detained in a Louisiana facility due to having coauthored an op-ed that upset Secretary of Deportations Marco Rubio. Earlier a district court judge in Vermont ruled the proper venue for a hearing on Öztürk's habeas petition was Vermont. The government appealed that ruling, but Öztürk won on appeal. However, before the government could transfer her to Vermont, Öztürk had another hearing during which the judge ordered her immediate release. Within hours. Öztürk was on an airplane back to Boston. She still faces government efforts to deport her, but will be able to continue that legal battle while free from detainment. U.S. District Judge William Sessions, explaining why he was ordering her release, stated that "There has been no evidence that has been introduced by the government other than the op-ed. I mean, that literally is the case ... There is no evidence here as to the motivation, absent the consideration of the op-ed." Therefore, Sessions concluded that Öztürk was being detained due to her expression of opinion that is protected by the First Amendment. He stated that "Her continued detention cannot stand." For its part, Tufts University issued a statement welcoming Öztürk back to campus and hoping that she could resume her studies.

Trump invoked the Alien Enemies Act after declaring the Venezuelan gang Tren de Aragua is a foreign terrorist organization that has invaded the United States. Trump then used that invocation to justify the removal of hundreds of Venezuelan migrants to El Salvador's CECOT without providing them due process. Lawyers attempted to prevent the initial flights to El Salvador by obtaining an injunction in the District Court of the District of Columbia. While Judge James Boasberg issued a temporary restraining order, that was eventually overruled by the U.S. Supreme Court, and the Trump administration ignored it anyway and proceeded with the removal flights. However, while overruling Boasberg, the Supreme Court affirmed that those facing removal have the right to petition for habeas and should be provided sufficient time to do so. This had the effect of prohibiting a nationwide injunction on removals, but allowing district-by-district rulings. A number of district courts issued district-wide temporary restraining orders preventing migrants within those districts from being removed. Three of those courts have ruled that the Alien Enemies Act was improperly invoked. However, a District Court in Pennsylvania ruled the opposite, saying that removals under the AEA are proper and could continue, at least for migrants in that district. However, even that judge, Stephanie Haines, ruled that migrants should be provided at least 21 days’ notice of their planned removal so that they can exert their due process rights.

Trump remains strongly opposed to providing due process to those he wants to deport. He recently said that "I hope we get cooperation from the courts, because we have thousands of people that are ready to go out and you can't have a trial for all of these people". However, at least where the Alien Enemies Act is concerned, Trump is facing exactly the situation that he wants to avoid. But, contrary to what Trump thinks, that's a good thing. Many of those already sent to CECOT appear to have been wrongly identified as Tren de Aragua members. Due process would have allowed them to dispute the designation and likely have prevented a number of injustices.

Earlier this week I watched the movie, "The Mauritanian" on Netflix. The movie is very good and I highly recommend it. I found the topic to be highly relevant to the deportation cases I've been discussing. The movie depicts the plight of Mohamedou Ould Slahi, a one-time member of al-Qaida who was detained after the September 11 attacks and held in the Guantanamo Bay detention camp. While at Guantanamo Bay, Slahi was subjected to torture, during which he confessed to a number of crimes. A military prosecutor refused to prosecute him because the evidence had been tainted by torture. A federal judge presiding over a habeas hearing ruled that while Slahi had been a member of al-Qaida at one time, there was not sufficient evidence that he had been involved in attacks against the U.S. or coalition partners. The judge granted a writ of habeas corpus and ordered Slahi's release. The government appealed the ruling which it won and another habeas hearing was ordered. However, no additional hearing was ever held and Slahi remained at Guantanamo for another six years. He was eventually released due to a decision by the Periodic Review Board. Never having been charged with a crime, Slahi spent a total of 14 years at Guantanamo Bay.

The government relied on Guantanamo Bay because it believed the base would be out of reach of the U.S. justice system. Without judicial oversight, the government was free to ignore due process and to engage in otherwise illegal acts such as torture. Like former President George W. Bush and former Secretary of Defense Donald Rumsfeld, Trump and his officials want to avoid due process and judicial interference in their efforts to remove migrants. Instead of Guantanamo Bay, which ultimately was not outside the reach of the judicial branch, Trump is sending people to CECOT. Trump believes that those detained at CECOT are outside the jurisdiction of the judicial branch and have no recourse to U.S. courts. However, as was the case in "The Mauritanian", habeas corpus plays a key role. Judge Boasberg is currently considering a habeas petition on behalf of those removed to CECOT. Life may soon imitate art, which, in this case, of course, was representing life. So, in other words, history could well repeat itself. One message of "The Mauritanian" is that everyone, even al-Qaeda members, deserves due process. That was true then, and today it is true for members of "Tren de Aragua".

Update: I just learned that a federal judge in Texas has ordered the release on bail of Badar Khan Suri, the Georgetown University student who was arrested primarily due to his wife being a Palestinian. The judge suggested that the arrest was aimed at suppressing free speech and said that the government had not provided evidence to support its charges.