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More news in immigration yesterday. There's an Atlantic article about it. The docket is Abrego Garcia v. Noem. The facts I'm recounting come from the declaration of Robert L. Cerna, Acting Field Office Director of the ICE Harlingen Field Office. This declaration is attached as Exhibit C to the government's response in opposition to the TRO (ECF #11).
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That last line is, frankly, insane to me given the circumstances. "Yea we knew at the time we deported the guy to El Salvador that it was illegal for us to do it, but it was in good faith!" What is the government's response to having illegally deported someone? Too bad! The government makes a few arguments but here I want to zoom in on a particular one: redressability. Ordinarily in order for a U.S. Federal court to have jurisdiction to hear a case the Plaintiff (that would be Abrego-Garcia, his wife, and his 5 year old son in this case) bears the burden of establishing that an order of the court would redress their claimed injury. This cannot be met here, according to the government, in part because they no longer have custody of Abrego-Garcia and so there is no order the Court can issue as to the United States Government that will reddress their injury. The appropriate entity to be enjoined is the government of El Salvador, over which a U.S. federal court obviously has no jurisdiction.
As best I can tell nothing in the redressability argument turns on any facts about his legal status in the United States. The argument is strictly about who presently has custody of the defendant in question. I do not see any reason why the government could not make an identical argument if an "administrative error" meant they deported a United States citizen.
Here's a small hint, U.S. Citizens are 'owed' certain 'duties' by 'their' (key word) Government. Non-citizens (once they've been determined to be such) are not.
Here's the actual Federal Law on the matter:
https://uscode.house.gov/view.xhtml?path=/prelim@title22/chapter23&edition=prelim
And the quote:
Bonus points:
Granted, what this looks like in practice is up for debate. What does "unjustly deprived" mean?
I'll reiterate the point I already made that I think the only way the Administration gets any heavy pushback on these actions is if they accidentally deport an actual U.S. citizen, who is then tangibly, physically harmed or killed while in custody, where-ever that is.
I actually agree that these measures are pretty draconian, but its hard to feel like "due process" is a major concern.
It'd be MUCH, MUCH easier to get Due Process if these folks, you know, followed the process and entered the country via the channels established to keep track of them and grant them permission to be here, so they can have a 'known' status.
"I intentionally skipped the procedural steps that would have established my right to stay in the country, but don't you DARE skip the procedural steps that would delay my inevitable removal from the country" is not a winning argument, I daresay.
While I am always reluctant to grant the government any additional powers, I do have to agree with this due process take. Due process only exists if the parties involved sign on to the process. If you are not going to bother to legally arrive, the government should not have to legally bother to deport you, just pack you up and ship you home.
What about asylum seekers who go through the legal port of entry instead of sneaking in? Are they owed due process?
Yes, that is the proper process, and they are owed due process. The "credible fear" exception that has become the standard response in recent years is so transparently abused that it should be done away with entirely.
I asked that because apparently one such refugee got deported to El Salvador who was such a legal asylum seeker. He had a mom and dad tattoo that apparently made him get kicked out
That sounds like it was a mistake then, and should be addressed. But the presence of error is not justification to just give up.
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Did he get kicked out after being admitted, or was his claim processed and rejected?
It was in the process of being approved or not
So, if his application got rejected for this reason, that's pretty dumb, but not quite the same thing as grabbing a dude who went in legally, was accepted, and then got deported.
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