ICE's One Weird Trick To Deport Asylum Seekers Who Come To Court!
Explainering Stephen Miller's neat loophole!
In the latest twist of its Maximum Cruelty Mass Deportation Crusade, the Trump administration is trying a new tactic: having federal lawyers in immigration cases ask immigration judges to dismiss migrants’ cases in immigration court, including many asylum cases, so that agents from Immigration and Customs enforcement (ICE) can just scoop them up in courtroom hallways as they leave the courtroom. Once their case is dismissed, that erases any legal permission an immigrant had to be in the country while their case was pending, so ICE can just grab them as they leave the courtroom and put them in expedited removal, which can be done without a court hearing at all. We will — we hope — better explain this below!
Such arrests started being reported at courthouses around the country last week, and are continuing this week. In San Francisco Tuesday, at least four asylum-seekers were grabbed by plainclothes officers, leading to protests outside the immigration court Wednesday. In New York City, dozens of plainclothes agents, most of them masked, lurked in the halls of an immigration courthouse, carrying lists of people with scheduled hearings, often including photos, so they could pick them off one by one as they left the courtrooms. Police also arrested people who had come to legally observe the courthouse, including a clergy member, claiming they were “obstructing” the arrests. Also arrested were people who tried to block the vans holding those arrested. And in Phoenix, Arizona, yesterday, ICE agents for a second week arrested people showing up for their immigration hearings, and also conducted targeted traffic stops for people who had attended their hearings and were driving home.
All the fascists are applauding the wonderful Catch-22 the administration has created: To keep their temporary legal status, asylum-seekers (and others with pending immigration cases) must show up for court hearings, so the feds already know they’ll be there. Then, once their cases are dismissed, they’re instantly ILLEGAL, so they can be grabbed and deported. But if they avoid their hearings out of fear of arrest, they’re also in violation of their status and can be deported once ICE finds them.
Isn’t that great, especially how the people being grabbed were dumb enough to think that following the law and attending their scheduled court hearings would do them any good? They couldn’t be “following the law” anyway, because after all they’re illegals, dummy.
It’s the kind of Catch-22 that would make Joseph Heller whistle in astonishment.
How To Make A Legally-Admitted Asylum Seeker ‘Illegal’
We discussed this with alert Wonkette Operative Kim Hunter, an immigration attorney in St. Paul, Minnesota, who explained that this is “one weird trick” (she knows her Wonkette jargon) to exploit a technicality in how asylum cases work.
There are actually two types of asylum cases. There are affirmative cases, in which someone might fly to the US on a visa and request asylum sometime after they clear customs. Or someone who somehow gets across the border without being picked up by law enforcement might just walk their undocumented self into an asylum office to apply. But the vast majority of asylum cases in the last decade involve folks who cross the border and turn themselves in to the Border Patrol with the intention of claiming asylum. Those asylum claims are considered “defensive,” meaning that they’re presenting a legal defense against deportation.
Normally, once they pass a “credible fear” interview in which they say they fear persecution if sent back to their country of origin, asylum seekers are granted permission to live and work here until they have an asylum hearing before an immigration judge. If they’re granted asylum, they get a green card and a path to citizenship. If not, they’re subject to deportation.
During the Biden administration, Hunter explained, the government would often dismiss defensive asylum-seekers’ cases as a way of cutting the years-long backlog in immigration courts. Once that happened, some of those whose cases were dismissed would go to an asylum office and formally apply for asylum, starting the process affirmatively. Others, she said, “just went about their undocumented lives,” although they had no formal legal protection from being deported. For most it wasn’t a problem, since the Biden administration prioritized removing undocumented immigrants convicted of crimes.
Under Trump, though, the priority is to deport everyone without papers because they are all “ILLEGALS,” even those with no criminal record. Again, most people seeking asylum are doing so as a defense against deportation. So paradoxically, dropping the deportation case against them also removes that defense, making them subject to expedited removal. Neat trick, huh? Now, even in expedited removal, people can still request a “credible fear” interview, but that’s entirely up to the immigration officers who are trying to hustle them out of the country, and all they’ll get is a “cursory review by an immigration judge, not a full hearing.” Good luck!
And remember, immigration courts are under the authority of DHS, unlike the rest of the nation’s courts, which are part of the judicial branch. Hunter told us that when DHS drops an asylum seeker’s case, it’s “throwing them to the wolves — ICE — who are also part of DHS.”
Deporting The Low-Hanging Fruit (Who Are Actual People)
Never mind the rhetoric about deporting dangerous criminals: The newest cruelty is being aimed at immigrants who don’t have attorneys, and are thus the least likely to know what options are available to them. And there they are in immigration court, ready to nab as soon as their cases go away.
Consider the case of the 20-year-old from Venezuela who was arrested last week after attending his mandatory court hearing. The New York Times explains (gift link) that Dylan and his family (last name withheld to protect them all) entered the country legally last year under the Biden administration’s program allowing people to cross into the US legally, using the “CBP-One” app, so they could apply for asylum. Dylan had been attending high school in the Bronx and learning English, but not anymore.
Dylan showed up at court — with his mother but without a lawyer — believing the hearing would be routine. Instead, he was arrested by ICE agents in plainclothes shortly after his case was dismissed, which stripped him of certain legal protections, his lawyers said.
He was whisked away in an unmarked car and has remained in detention since May 21, his mother said.
But the Trump administration says the Biden program wasn’t legal to begin with, so everyone who used the app to enter the country legally is actually an illegal border invader anyway. No court has ruled on that, but that’s no reason to slow down the deportations. In fact, it’s a motivation to speed them up before yet another rogue federal judge rules the whole goddamn scheme unconstitutional.
DHS spokesperson Tricia McLaughlin, the Joseph Goebbels of the second Trump administration, said in a canned statement that Dylan had entered the country “illegally” last year, never mind the app, because Trump and company say that doesn’t count.
“Most aliens who illegally entered the United States within the past two years are subject to expedited removals,” Ms. McLaughlin said. “ICE is now following the law and placing these illegal aliens in expedited removal, as they always should have been.”
The contempt for the law is pretty stunning. We say they’re illegal, so nothing else matters.
The simple fact is that the administration and its supporters don’t think asylum, refugee status, humanitarian parole, prior court rulings, or anything less than full citizenship counts as “legal” anyway. Even permanent residency and naturalized citizenship can be revoked, you know. Being born here may not even be a protection much longer if Trump decides you’re an enemy.
Due Process, Schmoo Schmocess
Not that ICE is inclined to worry too much about legal niceties like “due process” or judges’ orders, anyway. In Boston, immigration judge Mark Donovan was asked by the feds to dismiss a woman’s deportation case. Instead, he granted a continuance, meaning that her hearing was delayed but her case was still active. For good measure, he also “ordered that she not be subject to expedited removal, and that her status be adjudicated through the normal course of immigration court.”
Nonetheless, immediately after she left the courtroom, her attorney, Christy Rodriguez with the Massachusetts Law Reform Institute, said the woman was surrounded by plainclothes officers and put in handcuffs.
“I pushed back and said, ‘On what basis?’” said Rodriguez. “They said, ‘We’re going to put her into expedited removal proceedings.”’
She said that even after showing proof of the woman’s future hearing date, the agents said their orders were to take her into custody.
Benjamin Tymann, another attorney with the Massachusetts Law Reform Institute who’s helping the woman, immediately filed a habeas petition arguing the arrest had violated her right to due process, and federal district Judge Leo Sorokin ordered that the woman not be moved out of Massachusetts.
Tymann said he was still trying to figure out the whereabouts of his client. He called her detention “troubling” because it shows an “increasingly lawless approach by ICE in these matters.”
Expedited Cruelty
As NBC News reports, the administration is so in love with dismissing cases as a way of evading due process that it has even begun using it in some of the cases where people were sent to the Torture Prison in El Salvador. Last week, an immigration judge in San Diego dismissed the case against Andry Hernandez Romero, the gay makeup artist who applied for asylum as part of his own deportation case, but was deemed a terrorist gangbanger because he had an autism awareness tattoo. There’s a real chance that with his immigration case now dismissed, his chances of actually being returned to the US for due process have been disappeared just like he was. Return him? Why? There’s no case against him, and now he’s in prison forever.
As Hunter told us, cruelty isn’t only the point here, it’s all just “so exceptionally cruel, how they batter people around in an already broken system. It’s designed to terrorize people” from even attempting to protect their rights.
And on that somber but informative note, we grant you OPEN THREAD.
[Christian Science Monitor / AP / WaPo / NYT (gift link) / Arizona Republic / WGBH / NBC News]
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Guys, did you see the nice thing Rebecca said about me on Bluesky?
"I do believe Dok is the first reporter in the FUCKING COUNTRY to explainer why "dropping their deportation case against migrants" means "now they don't have any asylum claims." Learn a thing!"
https://bsky.app/profile/wonkette.bsky.social/post/3lqdpsbkpf22r
That's right, she called me a "reporter"! Also the other thing.
I mostly avoid talking about the nightmares happening as Mango Mussolini destroys everything. I stick to pretty pictures and positive things. I do this because it is how I survive, I see people so angry and upset and I just want to provide a moment of fresh air. It doesn't mean I don't know what's happening, I think I'm just trying to hold my head above the water and hoping maybe I can help someone else too. So how about one of those photos? Probably my first skyline shot from where I live now in 2013. https://substack.com/@ziggywiggy/note/c-121261763?utm_source=notes-share-action&r=2knfuc