Supreme Court Lets Trump Wipe A** On Constitution In 'Third Country' Deportation Case
Due process? Are we still talking about that old thing?
The Supreme Court yesterday allowed the US government to resume deporting some undocumented immigrants to “third countries” — places that aren’t where the immigrant is from — without due process, because … well, we don’t know why the six Republicans on the Court decided that’s OK, because this was an emergency “shadow docket” decision with no opinion from the majority. They ain’t telling; they simply granted a stay on a lower court’s order requiring due process in such cases, including notifying detainees where they would be sent and giving them a chance to object because they fear torture or death if sent to that country.
Don’t be fooled by the administration’s claims that this is all necessary to deport “the worst of the worst” criminal aliens. Nothing in the April 18 class action order that the Court blocked yesterday tied DHS’s hands or prevented it from deporting scary bad immigrants who have committed crimes. All the order required was that if the government wants to deport those bad guys (or anyone it calls a bad guy), it must first make minimally sure they won’t be tortured or killed wherever they’re sent.
Yesterday’s decision means that until the case makes it back through the appeals courts, which can take months, the Trump administration will get away with denying due process to certain immigrants: those who have 1) a deportation order from an immigration court and 2) whose home countries refuse to take them back.
They can now be sent to any country that the US has paid to take them, including countries so dangerous that the US warns citizens against traveling there, like South Sudan, Rwanda, or Libya.
Assistant Homeland Security Reichsmarschall for Propaganda Tricia McLaughlin was so delighted by the decision that she said in a tweeted statement, “Fire up the deportation planes.”
As with a lot of Trump’s mass-deportation fuckery, it’s all a bit complicated, probably by design, because that keeps everyone confused about which immigrants are being deported for what reason, and where. In all the confusion, the administration continues screaming that judges are “trying to keep dangerous murderers and rapists in the US!!!!!”
Keep your eye on the ball: None of this is about stupid libs giving hugs and kisses to gangbangers and terrorists. It’s about making sure that the administration follows the goddamn law, so it can’t get away with grabbing a day laborer, a student, a nanny, or YOU off the street, labeling them (or YOU) a “terrorist gangbanger,” and sending them to a torture prison forever without so much as a hearing.
Of course, pointing out that protecting bad people’s rights also protects everyone else’s rights always short-circuits when you point it out to Trumpers, who retort “But I’m not a bad person and will never be. Why are you standing up for ILLEGALS? Only ILLEGALS are being deported. They’re all bad! What part of ILLEGAL don’t you understand?” No, never mind the part where, between 2015 and 2020, ICE wrongly deported at least 70 US citizens, and arrested hundreds more. Oops.
The Basics, Again
This involves those eight deportees that the government tried to fly to South Sudan in May, after informing them at 5:30 Texas time that they’d be deported to a country they may or may not have ever heard of. They were loaded onto buses and taken to an airport at 9:30 the next morning, meaning there was virtually no time during business hours for them to contact a lawyer or file a challenge to their removal.
As we noted previously, this case is different in one way from the case of the 200 men flown to the Forever Torture Prison in El Salvador, because these guys at least had due process up to a point. All of them committed serious crimes and finished sentences in US prisons, and immigration judges lawfully ordered them deported. But they’re all from countries that don’t want to accept them. In such cases, it’s also legal to deport people who have standing deportation orders to a third country that agrees to take them.
Here’s where the government violated due process: It ordered them sent to one such country, South Sudan, without letting them challenge their final destination, which is required under international human rights law and US law. It isn’t legal to send someone anywhere they fear being tortured or killed.
US District Judge Brian E. Murphy found that the men’s deportation violated his April 18 order requiring advance notice of such third-country deportation, and sufficient time to bring a challenge. He ordered Homeland Security to keep the men in its “custody and control” until they get a “credible fear” hearing, either back here in the US, or on the ground in Djibouti, where they’ve all been cooped up since May 21, when Murphy ordered the plane couldn’t continue on to South Sudan.
Yes, that’s the same group of men who are confined, with their DHS guards, in a shipping container converted into an office and now a prison at a Navy base there, where everybody got sick. You’d think that in all this time they could have managed at least to provide hearings to the men, but that would mean complying with a court order, so obviously the administration didn’t wanna.
What Was The Supreme Court Thinking?
As we say, we have no idea, because “shadow docket.” But all three liberal justices signed onto a fiery-hot 19-page dissent written by Justice Sonia Sotomayor, which lays out some of the legal issues in the government’s and the immigrants’ court filings. (No oral argument, again because shadow docket.) The dissent begins by trying to slap the majority’s face to make it see why this fucking matters:
In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there. Then, in clear violation of a court order, it deported six [sic] more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel.
These are not abstract matters of law. Lives are at stake. You fuckers.
Also, there’s some confusion over how many men we’re talking about: In court filings, plaintiffs say it’s eight, and explain why it’s not six as Sotomayor (and Murphy) wrote. Yeesh, what a cluster.
Basically, it looks like the majority bought into the government’s argument that the immigrants already got all the due process they’re due in their original immigration cases, which ended with a deportation order, and if they objected to being sent to a third country, they should have raised the objection then. As Sotomayor points out, that’s insane, because during their initial process, even their final deportation hearing, the government hadn’t yet decided where to send them, so there was no order of removal to challenge:
The Government asserts that it need only comply with these provisions once, for the first removal proceeding, and can disregard them afterwards.
That’s some catch! As Sotomayor notes, it renders much of the original removal hearing pointless if the government can decide to deport someone anywhere it wants if the original destination (the home country that won’t take the deportee) doesn’t work out, without consideration of what hell the deportee is being sent to.
As Georgetown Law professor Steve Vladek explains, Sotomayor raised any number of reasons the Court shouldn’t have stayed Murphy’s order, not least of which is that a procedural stay is only supposed to be available to parties with “clean hands” — that is, that if one party has already legally fucked a case up, it can’t ask a judge to fix a problem it created. And in this case, by ignoring the deportees’ rights to challenge being sent to a dangerous third country, the government has no right to ask the Supremes to let it continue deporting them illegally. Says Vladek:
As Sotomayor explains, by not imposing any cost on the government for its misconduct, the majority not only defied a fundamental principle of equitable relief, but it is affirmatively threatening the rule of law itself. In her words, “This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”
It’s an excellent overview of Sotomayor’s dissent, but heck, at just 19 pages, the dissent itself is a good read too.
What Now? It’s Fucked, But …
In response to the Court’s stay of his April 18 order requiring that deportees get due process, Judge Murphy immediately issued a new order preventing the government from sending the eight plaintiffs to South Sudan. Murphy issued that order in response to a motion from the men’s lawyers which argued that while the Supremes had blocked due process protections for plaintiffs in the class action case, Murphy’s April 18 order still protected the men being held right now in Djibouti.
The New York Times explains (gift link):
In a brief order Monday night, the judge denied the motion as unnecessary. He said that he had issued a separate ruling last month, different from the one the Supreme Court had paused, protecting the men in Djibouti from immediate removal.
Not surprisingly, the Trump administration is now claiming that’s cheating, and Solicitor General D. John Sauer filed another emergency motion today demanding that the Court clarify that the men ARE TOO covered by their ruling, and that they MUST be sent to South Sudan immediately. The new filing also suggests it would be a good idea to kick Murphy off the case altogether, for being mean to the president.
Sauer claimed Murphy’s order was “a lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the executive’s lawful efforts to effectuate third-country removals.” It claims again that the government will be “irreparably harmed” by not immediately sending the eight plaintiffs to South Sudan, so please please please let us fuck them over NOW, OK? Besides, Djibouti is really dangerous, and the government shouldn’t have to keep the men and the DHS agents there, even if it was the government that defied Murphy’s order when it sent them there (that’s the “clean hands” thing again).
Now, as it happens, Sotomayor’s dissent seems to have anticipated that wrinkle in the case, noting that the federal immigration law the government relied on to challenge the class action protections of due process
undisputedly does not affect the District Court’s authority to grant relief to the individual plaintiffs here; it affects only the classwide injunction. Thus, even if the Government is correct that classwide relief was impermissible here, it plainly remains obligated to comply with orders enjoining its conduct with respect to individual plaintiff.
Maybe she needs to be deported, too. Stupid Constitution gives too many rights to people the Trump administration doesn’t like.
[Migrant Insider / CBS News / CNBC / Order and dissent in DHS v. D.V.D / One First / NYT (gift link)]
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Just a reminder, Venezuela said it would accept deportees but ICE sent the Venezuelan deportees to El Salvador anyway.
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