It can be difficult to keep track of the Trump administration’s deportation policies, and the many legal challenges against them. But a dramatic showdown in a federal courtroom this week is worth a closer look.
Lawyers were challenging a contentious Trump administration tactic: Sending deportees to countries they are not from, with little or no opportunity to raise objections.
In April, Judge Brian E. Murphy of the Federal District Court in Boston ordered the government to give deportees at least 15 days notice before sending them to a third country, and to provide them a chance to tell a court whether they feared persecution or torture at their destinations.
On Tuesday, the Department of Homeland Security ignored that order, and deported a group of men to a third country with only a day’s notice. Which country? It’s not entirely clear.
The eight men — from Cuba, Laos, Mexico, Burma, Vietnam and other countries — were first told they were heading for the war-torn nation of South Sudan; their plane landed instead in Djibouti, in eastern Africa. The government has not said where it intends to take them next.
Judge Murphy was irate. “The department’s actions in this case are unquestionably violative of this court’s order,” he wrote, warning that the administration officials who enabled the deportations could potentially face criminal penalties.
‘They might be killed’
“This case presents a simple question,” Judge Murphy wrote in the April order. “Before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there?”
To understand exactly what’s going on here, it’s important to understand the laws that dictate these cases.
U.S. federal law specifically prohibits the government from deporting people to countries where their life or freedom would be threatened because of their race, religion, nationality, membership in a particular social group, or political opinion, or where it is “more likely than not” that they would face torture.
Those rules were passed by Congress, but the U.S. is also obligated to follow them under international law, specifically The Convention Against Torture, a treaty that the United States ratified in 1994; and the Refugee Convention, which the United States joined in 1968.
Separately, the Trump administration has also invoked a rarely used wartime law, the Alien Enemies Act of 1798, to send a group of Venezuelan men to a notoriously brutal prison in El Salvador, a policy that is being challenged via separate litigation.
But the case of the eight men sent to Djibouti is different. Until the very end, their cases were governed by normal immigration laws and processes. The Trump administration could have continued following the applicable laws, either sending them back to their home countries if that was possible and would not pose a risk of persecution or torture, or going through the legal process required for third-country deportations.
Instead, the Department of Homeland Security simply put them on a plane, with the final destination as yet unknown. That deliberate rupture could test the entire immigration system and the laws that govern it.
The need for due process
The Supreme Court has ruled that the due process clauses of the U.S. Constitution require, at a minimum, “notice and opportunity” — not just for U.S. citizens, but for everyone in the country. That means the government must notify individuals about what it plans to do and give them a chance to challenge that decision.
In deportation cases, the government must tell people what country they will be sent to. Ordinarily, the government sends deportees back to their home countries. If that’s not possible, the law allows the government to designate a different destination instead.
The person then gets an opportunity to claim in court they would face torture or persecution there.
The lawyers who appeared in federal court in Boston this week have filed a class-action lawsuit against the Trump administration. The suit argues that the government has failed to provide adequate due process to an entire class of plaintiffs, who have gone through deportation proceedings in immigration court but were never notified they could be sent to third countries.
The deportation on Tuesday was the fourth time that lawyers have accused the Trump administration of skirting, if not outright violating, Judge Murphy’s April order.
The others involved a Guatemalan man who was sent to Mexico, the Venezuelans who were sent to El Salvador, and a plan several weeks ago to send a group of men to Libya. The U.S. State Department advises Americans not to travel either to Libya or to South Sudan, citing the threat of crime, armed conflict, kidnapping and other dangers.
The flights to Libya never took off, but the some of that same group may have been sent to Djibouti this week.
In many ways, this seems puzzling. The administration could have avoided legal challenges by providing basic due process and choosing relatively safe third-country destinations like Costa Rica, which has already agreed to accept some deportees from the United States. Instead, it appears to be courting conflict with the judge, and perhaps even risking punishment for criminal contempt.
Baiting the courts
The administration may simply believe deportations will have more deterrent value if migrants are sent to countries that are obviously dangerous or violent. But another possibility is that the administration is following the pattern of leaders around the world who specifically set up fights with the courts that they think the public will support.
In Mexico and Turkey, for example, leaders engineered clashes with courts over issues popular with voters, then used the resulting public backlash to push through overhauls that radically undermined the courts’ power.
Engineering legal fights over popular issues can also pressure the courts to issue only narrow rulings that have the effect of weakening checks and balances, said Andrew O’Donohue, a nonresident scholar at the Carnegie Endowment for International Peace. He studies clashes between courts and elected leaders around the world, and calls this strategy “court baiting.”
“The president himself is a very instinctual politician, but there are other advisers within his orbit like Stephen Miller who have a much broader strategy, a much more deliberate strategy for thinking about how to drive a wedge between voters and the courts,” Mr. O’Donohue said.
Mr. Miller, the deputy White House chief of staff and a longtime immigration hard-liner, has said that he thinks border security is a “90-10 issue,” meaning that the overwhelming majority of Americans will support the president’s position.
In fact, polls show that support for the Trump administration’s immigration policies has fallen in recent months, with more than half of respondents to an April CNN poll saying that the president had gone too far. But there may be more support for removing individuals who have committed particularly violent crimes.
The group of men sent to Djibouti may have been selected on that basis. This week, the Trump administration released documents showing that the eight deportees had been convicted of crimes that include murder, sexual assault and robbery.
“We conducted a deportation flight from Texas to remove some of the most barbaric, violent individuals illegally in the United States,” a Homeland Security spokeswoman told reporters, adding that the offenses the men had committed were “uniquely monstrous and barbaric.”
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Amanda Taub writes the Interpreter, an explanatory column and newsletter about world events. She is based in London.
The post How to Understand Trump’s Latest Deportation Tactics appeared first on New York Times.
