Immigration-Related Updates

Today I am going to provide updates on some of the stories about which I've been writing. First, there was an important development in the case of Venezuelan men renditioned to El Salvador's Terrorism Confinement Center or CECOT after cult leader, convicted felon, and failed President Donald Trump invoked the Alien Enemies Act. This update involves the Chief Judge of the U.S. District Court for the District of Columbia, James Boasberg. Those who have been following this case will know that Boasberg is the O.G. judge when it comes to the AEA. Boasberg was presiding over an attempt to stop the original AEA removals while planes destined for El Salvador were literally sitting on airport runways. During that hearing, he issued an order from the bench stopping the men from being sent to El Salvador. Government officials ignored the order, saying that they were waiting until it was put in writing. By the time Boasberg's written order was released, the government claimed that the airplanes were outside his jurisdiction. Boasberg has started contempt procedures as a result, though his ruling has been stayed by the Court of Appeals. 

Boasberg also ordered a nationwide temporary restraining order stopping any further renditions. While TROs are not normally appealable, courts of appeals have lately been particularly accommodating to the government in this regard. The case eventually made it to the U.S. Supreme Court, where the majority ruled against Boasberg, saying that instead of Boasberg's nationwide injunction under the auspices of the Administrative Procedure Act, those being threatened with removal should seek relief through habeas petitions. As a result, prisoners being detained in several federal court districts have petitioned for habeas, and a number of judges have issued TROs preventing the removal of those detained in their districts. However, this has not addressed the situation for those already sent to El Salvador. Yesterday, Boasberg certified the Venezuelans being held in CECOT as a class and ruled that the government had violated their due process rights. He also determined that "the Government must facilitate the Class’s ability to seek habeas relief to contest their removal under the Act."

One issue with which courts are struggling is whether or not the government has "constructive custody" of those who are being held in CECOT. The government's position is that the prisoners are in custody of a sovereign government and that the U.S. government no longer can influence their fate. This has been an issue in the case of Kilmar Abrego Garcia, the El Salvadoran migrant who was living in Maryland when he was wrongly sent to CECOT (he has subsequently been moved to another prison). While the Supreme Court ruled unanimously that the government must "facilitate" Abrego Garcia's return to the U.S., the government has contended that it is helpless to do anything because Abrego Garcia is outside their control. The plaintiffs in the case before Boasberg argued that, because the U.S. government is paying for the prisoners to be held in CECOT and has significant influence with the government of El Salvador, it retains constructive custody. Boasberg did not accept this argument but, instead, accepted the government's contention that El Salvador is the "legally responsible sovereign". However, Boasberg seems to see this as an open question of sorts and has invited further evidence to be submitted.

Despite court rulings that the Trump administration must "facilitate" the return of Abrego Garcia and a number of other individuals, the government has generally resisted taking any actions. U.S. District Judge Paula Xinis is currently presiding over a process to determine whether the government is in contempt for not taking measures for Abrego Garcia's return. Yesterday, she approved a largely procedural motion to allow plaintiffs in the case to seek sanctions against the government. The most likely government response to Boasberg's ruling is for the government to simply ignore it as has been the case with other rulings requiring that actions be facilitated. Alternatively, the government can attempt to arrange habeas hearings for the men while they continue to remain in CECOT. That is what the government has attempted in response to a ruling by U.S. District Judge Brian E. Murphy. Murphy heard a case involving migrants that the U.S. government was attempting to deport to South Sudan. He had attempted to stop their deportation, but the group had already left the country. Murphy then ordered that the men remain in U.S. custody, and they were then detained in Djibouti. The government has been trying to arrange habeas hearings from Djibouti. Last week, Murphy expressed frustration over delays saying, "It turns out that having immigration proceedings on another continent is harder and more logistically cumbersome than defendants anticipated." He ordered that if remote hearings were not workable, the men would have to be returned to the U.S.

Murphy also presided over another immigration case in which there was an important development. A Guatemalan man identified as O.C.G. was deported to Mexico last month. The U.S. government had previously provided testimony that O.C.G. had not expressed fear about being deported to that country. However, that testimony turned out to be false, the result of an error according to government lawyers. O.C.G. is gay and says that he was a victim of rape in both Guatemala and Mexico and, therefore, feared to return to either country. After being deported to Mexico, O.C.G. made his way back to Guatemala. Murphy ordered the government to facilitate his return to the U.S. In contrast to the other cases, the government acted fairly expeditiously and he returned to the U.S. yesterday. The difference in this case is that, unlike those being held in CECOT, O.C.G. was not in custody of a foreign government. O.C.G.'s lawyers expected him to immediately be taken into U.S. government custody and to face renewed deportation proceedings, but as of this writing I am not aware of any updates since he landed in the U.S.

Another note regarding migrants involves new tactics being used by Immigration and Customs Enforcement agents. Trump has normally painted migrants as criminals or worse and promised to deport those who commit violence. However, that description only applies to a very small minority of immigrants. The simple truth is that it would be impossible for Trump to reach the number of deportations that he has promised while sticking only to those who are violent or have criminal records. Moreover, true criminals are harder for ICE to track down, and arresting the actual violent ones among them involves some danger for the ICE agents. As a result, almost from day one, ICE has been going after migrants who are not violent and who have been following the rules. This was the case with Abrego Garcia. He has no criminal record and was complying with immigration laws. A judge had ruled that he was not eligible for removal. He had a job and a family. The only evidence suggesting that he was a gang member was very questionable and not admissible in a court of law. He was arrested while driving his son home from his son's grandparent's house. Recently, ICE has become even more aggressive about targeting migrants who are following the rules, in particular, arresting them at courthouses. Migrants are required to conduct periodic check-ins and they may have other reasons for court appearances. ICE agents have started waiting in courthouse hallways and arresting these individuals as they leave court. In some cases, the migrants are involved in legal processes that prevent them from being deported. U.S. attorneys have dropped such cases, knowing that the defendants would be detained by ICE immediately upon leaving the courtroom. The individuals are being detained because they are following the rules, not because they are violating them. The fact that they are abiding by the requirements is what is enabling their arrests. Soon, migrants will stop following the rules and will avoid courthouses.

Another development is that citizens are now acting to prevent ICE arrests. Across the country, ordinary people have intervened with or confronted ICE agents, demanding to see warrants, photographing or recording events, and, in some cases, physically obstructing ICE. In Minneapolis, heavily armed and, of course, masked ICE agents were confronted by a large crowd, resulting in a near riot. ICE has now started arriving at locations in armored vehicles, dressed and armed as if they are members of Seal Team Six. It is only a matter of time until someone is killed or seriously injured in one of these ICE raids. Trump is deploying personnel from other agencies, including the IRS, FBI, the U.S. Marshals Service, and the Drug Enforcement Administration. Trump is also requesting up to 21,000 National Guard troops to be used in immigration raids. Trump's Gestapo is taking over other law enforcement agencies, causing them to neglect their normal missions and concentrate on arresting law-abiding migrants.