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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.
There's a lot of people in between US Citizen and illegal immigrants, like green card holders, legal immigrants and temporary (legal) visitors. Tens of millions, in fact. Where do they stand on the "Due Process" scale? Because even if you are right and US Citizens do have legal recourse, the non-Citizens legal immigrants sure don't.
I think they're at least entitled to get a hearing as to whether they were legally entitled to be in the U.S., and to contest any grounds the U.S. used to remove them, on that basis.
I'm NOT certain if it then follows that they can demand that the U.S. return them back to U.S. soil.
What would probably result in that case is that they get released from El Salvadoran custody and then can buy a plane ticket back on their own dime. Not certain though. The whole idea is that Green card status is a privilege that is granted by the U.S. government and exists only so long as the government chooses. Its not a strict entitlement.
Wouldn't that solve the issue? They got their due process (albeit not on U.S. soil) and are not barred from re-entering the U.S. if they want, since they still have the green card.
Again admitting that its Draconian to sweep up nonviolent, legal 'guests' and 'visitors' alongside verifiable criminals.
BUT I WOULD ONCE AGAIN SUGGEST THAT SUCH PEOPLE CAN PETITION THEIR HOME COUNTRY FOR REDRESS.
Why not? If they were allowed to be in the US, and the US expels them erroneously, surely it's not fair to them to ask them to front the cost of the trip back, which they wouldn't have needed if not for the government screw-up.
Suppose I'm at a neighbor's house party. The guy gets drunk, mistakes me for a personal enemy of his who snuck in uninvited, punches my lights out, then drives me to the next town over and drops me off at a bus stop before I come to. Once he sobers up and realizes, I think he owes me more than an apology over the phone and invitation to come back over if I want. I think he definitely owes me bus fare at least, and probably some extra compensation for my trouble. I've got no absolute right to be at his house whenever I want, but that's not the point!
I mean, if he can meet the standard for a false arrest case he might have a shot.
But I think the entire point of the case is hinging on whether there was or was not probable cause to detain him.
And its not inherently required to return him to U.S. soil to hold that hearing either.
Like, if you get arrested (they falsely thought that you were a vagrant for sleeping at a bus stop with alcohol on your breath) and taken to jail, then it turns out there was no basis to actually arrest you, you get released. But the cops aren't obligated to drive you home. They might do so by way of apology/to avoid bad press.
Fundamentally I think its FAIR to fly him home. In fact I'd say that's the best way to smooth over the situation to mitigate bad press. But that's only IF there's an actual finding that the detention was unjustified/unlawful and there is in fact no other legal reason to keep him out.
Goes to my other point that every Nation State claims the authority to exclude foreign nationals if the need arises.
Remember Trump's Travel Bans from his first term?
The Supreme Court upheld most of THOSE travel bans when the administration bothered to defend them. This should add on to the point about what 'due process' foreign nationals are entitled to.
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