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PaperclipPerfector  16d ago (text post)   33187 thread views

Culture War Roundup for the week of March 31, 2025

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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).

6. On March 15, 2025, two planes carrying aliens being removed under the Alien Enemies Act (“AEA”) and one carrying aliens with Title 8 removal orders departed the United States for El Salvador. Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed. This removal was an error.

7. On March 29, 2019, the Department of Homeland Security (DHS) served Abrego- Garcia with a Notice to Appear, charging him as inadmissible pursuant to Section 1182(a)(6)(A)(i) of Title 8 of the United States Code, “as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the [Secretary of Homeland Security].”

...

9. On October 10, 2019, an IJ ordered Abrego-Garcia’s removal from the United States but granted withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A). This grant of protection prohibited his removal to El Salvador.

10 . Following this grant of withholding of removal, Abrego-Garcia was released from ICE custody.

11. On March 12, 2025, ICE Homeland Security Investigations arrested Abrego- Garcia due to his prominent role in MS-13. Over the next two days, Abrego-Garcia was transferred to the staging area for the removal flights discussed in Paragraph 6.

12. The operation that led to Abrego-Garcia’s removal to El Salvador was designed to only include individuals with no impediments to removal. Generally, individuals were not placed on the manifest until they were cleared for removal.

13. ICE was aware of this grant of withholding of removal at the time Abrego- Garcia’s removal from the United States. Reference was made to this status on internal forms.

14. Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador. Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight. The manifest did not indicate that Abrego-Garcia should not be removed.

15. Through administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13.

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.

In most civilized countries, "if you deport me I will face a lengthy prison sentence without a court trial which would vaguely meet Western standards" would be reason enough to grant asylum.

From my understanding, El Salvador is not planning on making the people Trump sends them into upstanding citizens of their society. Instead, they will simply lock them up indefinitely.

Given the harmfulness of being locked up indefinitely in a country with a spotty human rights record, I would argue that this demands due process on the scale of a capital crime trial. In consequence, it is closer to executing someone than to deporting a Canadian whose work visa expired back to Canada.

In most civilized countries, "if you deport me I will face a lengthy prison sentence without a court trial which would vaguely meet Western standards" would be reason enough to grant asylum.

You may have noticed that the asylum system is broken in all of these countries, with millions of illegal immigrants cynically using it as a get out of jail free card that allows them to sneak into the first world and stay there indefinitely.

The only countries that don't have these issues (Australia, Denmark, Japan come to mind) grant approximately zero asylum claims.

In most civilized countries, "if you deport me I will face a lengthy prison sentence without a court trial which would vaguely meet Western standards" would be reason enough to grant asylum.

Which is why the European continent of civilized nations have largely transitioned to a pre-arrival detention model, so that those who would make asylum claims receive lengthy prison sentences without a court trial before they can make an asylum claim.

The Europeans pay extensive sums of money to countries with spotty human rights records precisely for this service, as do many other countries that would rather not deal with economic migrants who have been coached to claim asylum.

It has largely been a win-win-win for the three main groups of states involved. Migrant-destination states don't have to deal with increasingly delegitimized asylum practices that have been used as a tool for illegal migration facilitations, Migrant-holding states get significant foreign aid and reprieve from state sanctions from the migrant-destination states, and bystander states that aren't facing socially-destabilizing numbers of migrants get to claim moral high ground posturing relative to the rest.

In most civilized countries, "if you deport me I will face a lengthy prison sentence without a court trial which would vaguely meet Western standards" would be reason enough to grant asylum.

And the consequence of that is that we're letting pedophiles and repists stay, and that's not civilized in my book.

This centers the criminal, and his rights, and what is in his interest. What about my rights? And my interests? Why should my state put the interest of someone who has zero right to be here above mine?

He is not an American. He has zero right to be here. He broke the law to be here. He lied that he was in danger to abuse our asylum laws. He is not a good faith actor.

Given the harmfulness of being locked up indefinitely in a country with a spotty human rights record, I would argue that this demands due process on the scale of a capital crime trial.

Infinity Salvadorans, Infinity Afghans, Infinity Somalians

Why should my state put the interest of someone who has zero right to be here above mine?

The point is that the same logic which is being applied here could be used to deport and abandon citizens. Just ignore due process, do what you want and then, oops, looks like you're in a tinpot dictatorship now so nothing we can do because there's no way to redress your grievance.

'I don't care about due process because this guy was guilty anyway' is not a very coherent position.

If they just grabbed him off the street and deported him I would be more open to your POV. But they didn't. He is not an American, it was properly established and litigated he was here illegally.

This centers the criminal, and his rights, and what is in his interest. What about my rights? And my interests? Why should my state put the interest of someone who has zero right to be here above mine?

He is not an American. He has zero right to be here. He broke the law to be here. He lied that he was in danger to abuse our asylum laws. He is not a good faith actor.

Given that he was imprisoned without trial on his return to El Salvador, he wasn't wrong that he was in sufficient danger to trigger the asylum laws. His claim to be in danger from gangs (indeed, a specific gang that was a rival of MS-13) may also be correct, but in these parts I understand that the hip terminology is "directionally correct", which he certainly was.

Yes he was wrong. He fabricated a specific claim of danger to game our asylum laws. That some totally different thing happened to him has no bearing on his original claim.

What rights of yours were infringed? What evidence is there that he fabricated a specific claim of danger?

I also have a right to rule of law, and I rank my right much higher than his.

What evidence did Garcia need to stay here? Per his 2019 removal proceedings the only evidence he needed was testimony of him and his family that they were threatened. Why would I believe him when 1) he didn't apply for asylum until it was clear he was going to be deported and 2) his family at the time were in Guatemala, not El Salvador? I just don't believe him.

He lied that he was in danger to abuse our asylum laws. He is not a good faith actor.

Given that he was imprisoned without trial on his return to El Salvador, he wasn't wrong that he was in sufficient danger to trigger the asylum laws. His claim to be in danger from gangs (indeed, a specific gang that was a rival of MS-13) may also be correct, but in these parts I understand that the hip terminology is "directionally correct", which he certainly was.

Yes he was wrong. He fabricated a specific claim of danger to game our asylum laws. That some totally different thing happened to him has no bearing on his original claim.

Requesting clemency for patricide on grounds of being an orphan is certainly a strategy.

"I'm in danger from one gang because I'm a member of another gang" is a cheeky reason to demand asylum, but I don't think it's actually valid. And Garcia claims not to be a member of MS-13.

I had to read several articles about this to really understand

  • he illegally entered the US
  • he applied for asylum, citing danger if he returned to El Salvador
  • a judge denied his asylum request
  • but a judge did sympathize and say he can't be deported back to El Salvador
  • he's still an illegal alien!
  • presumably the US tried to find another place to send him, but couldn't
  • so he remained in the US
  • until they accidentally deported him to El Salvador for thinking he was part of a gang

I had to read several articles about this to really understand

I hate journalists so much. They deliberately lie by omission because of their ideologies (Right wing journos leave things out too).

It shouldn't take so much time to figure out what all these people are arguing about.

more than ever, reading the news is anti-informative

Wait, so he wasn't granted asylum, just a stay of deportation to El Salvador specifically?

If I'm understanding right:

  • He applied for asylum from El Salvador in 2019. The immigration judge denied his request for asylum, but granted him "withholding of removal," which specifically prohibited his deportation to El Salvador due to the risk of persecution there
  • ICE did not appeal this decision, and he was released.
  • The withholding of removal meant he was still removable from the US, just specifically not to El Salvador. The government could have legally deported him to any other country willing to accept him without violating the court order.
  • The "administrative error" was that ICE deported him specifically to El Salvador in March 2025 despite being aware of his protection from removal to that country, violating the exact limitation imposed by the court.
  • And now the Trump admin is saying "yeah we did the thing we were specifically ordered by the court not to do, but now it's done and even though we could fix it we won't and you can't make us".
  • And the Trump admin is probably correct on the "and you can't make us" part, because in the end a court order is a piece of paper and someone still has to enforce said court order.
  • This doesn't actually set any legal precedent that this method of deportation is ok though, it just adds to the growing pile of divergences between what the law says agencies must do and how government agencies actually operate in practice.

He applied for asylum from El Salvador in 2019. The immigration judge denied his request for asylum, but granted him "withholding of removal," which specifically prohibited his deportation to El Salvador due to the risk of persecution there

This seems like a pretty nonsensical status that I can't really explain. The guy is from El Salvador, which is then about the only country that could be reasonably expected to take him back for no reason (others would also expect dollars, most likely). I get that there are real concerns about it's criminal justice practices these days (which are maybe better than it's previous murder practices), but I can't really explain this ruling other than an activist judge recognizing that he doesn't actually qualify for asylum but granting him the closest functional equivalent: Surely asylum would apply if he was actually at risk of persecution (on the basis of protected statuses) and applied truthfully for it in the US. Or maybe I'm missing something?

To that I'll add my confusion about "we can't just send him back to a country with a 'shady' human rights record!" arguments. If his argument for being allowed to stay in the US was "I'm being threatened by gangs", isn't that problem largely taken care of by now?

That is an excellent point.

Though he's being held in prison in El Salvador? Because the US said so? And he has no rights as an El Salvsdor citizen himself to demand his release?

Though he's being held in prison in El Salvador? Because the US said so?

Oh god, now I can't get the image out of my head, where he's getting locked up, and then hears a familiar voice from inside the cell saying "welly, welly, well... look who's here!".

I think the redressability argument makes sense. At most, they can order DHS/CPB that, if the plaintiff presents himself at the border, they must admit him.

On October 10, 2019, an IJ ordered Abrego-Garcia’s removal from the United States but granted withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A). This grant of protection prohibited his removal to El Salvador.

So to actually read the operative statute it says

  • (A) In general Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.
  • (B) Exception Subparagraph (A) does not apply to an alien deportable under section 1227(a)(4)(D) of this title or if the Attorney General decides that-
    • (i) the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion;
    • (ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States;
    • (iii) there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or
    • (iv) there are reasonable grounds to believe that the alien is a danger to the security of the United States.

It doesn't seem clear to me that the AG couldn't invoke 1231(b)(3)(B)(iv), which essentially vest in her the plenary power to make an exception to (A).

Then specifically, look at the date of the order, October 10, 2019, who was AG on that date?

The whole thing is ridiculous kayfabe. Trump's AG, by the very terms of the statute, could have ordered him back to ES 5 years ago.

Actually I'm a bit confused so if anyone has the details please help.

It seems like these people are being deported, so once they land in another country any reason for their detention under US law has come to an end, unless there are some sort of parallel criminal proceedings.

So if they are imprisoned in the El Salvador prison, it seems like it would have to be under El Salvador law. Unfortunately I have no idea of what that might be.

The problem with this approach is that it establishes terrible incentives. If the argument "that was a mistake, but it is a done deal, and no court order in the world can change this" was sufficient, then there would not be wrongful death civil suits.

If individuals or governments fuck up in a way which is beyond repair, we don't shrug and say "well, luckily for you, the antique you recklessly destroyed was beyond price, so there is nothing you can do to make it right, off you go". We use money to approximate the damage. Sometimes we award punitive damages.

Of course, the prison in El Salvador is as likely to follow the whims of the US government as gitmo is. If Trump makes it a priority to right the wrong his administration did, that guy could be back on US soil in 24 hours. It only takes a court to set the correct incentive.

Perhaps award to him or his family 1000$ in federal funds for the first day he spends in El Salvador because Trump's goons ignored a court order, and double that every day afterwards, up to 1% of the defense budget per year. I am sure that the administration would rather get him back then pay him a billion in taxpayer money.

How about we fine him for entering the US illegally and make the fine double your proposed fine?

I see no reason why people who shouldn’t be here in the first place are getting benefits denied to US citizens given there’s no federal right to compensation for government mistakes/ errors / negligence.

Illegally entering the US is not a crime which warrants a lifetime of imprisonment, or what might be an adequate monetary equivalent to that.

If someone is trespassing on your property, and steps on a landmine you placed and gets his legs blown off, you can not simply tell the judge that since the trespasser was in the wrong, he does not have any cause for a complaint.

I see no reason why people who shouldn’t be here in the first place are getting benefits denied to US citizens given there’s no federal right to compensation for government mistakes/ errors / negligence.

While the US government claims sovereign immunity over a lot of things, there is still the FTCA.

WP gives an example:

In 2022, a navy sailor successfully sued under the act after being hit by a vehicle driven by an active-duty military member, and received a $493,000 settlement.

Perhaps award to him or his family 1000$ in federal funds for the first day he spends in El Salvador because Trump's goons ignored a court order, and double that every day afterwards, up to 1% of the defense budget per year. I am sure that the administration would rather get him back then pay him a billion in taxpayer money.

I think this would be considered a punitive rather than a coercive fine. Still, I don't think you even need to go exponential on the fines. There is existing precedent for the structure "$25,000 minimum initial fine, increased in $25,000 increments daily until the contempt is purged or the maximum penalty of $250,000 is reached after 10 days; amount of fine depends on timeliness of compliance", and I think that structure would probably suffice.

This actually makes me feel better than after reading the other fake news. This guy was supposed to be deported to somewhere besides El Salvador, but we couldn't find any other country in the world willing to take him. So he had no legal status and should be deported asap. I'm gonna call it a happy accident.

Meanwhile the other fake news says:

the man had protected immigration status in the U.S. ...

a judge granted him withholding from removal.

On Wednesday, March 12, Abrego Garcia learned his immigration status had changed

Also, it appears that "withholding of removal" is not in the statute but just agency regulation. So hopefully Trump can just EO nuke the entire section after a nice APA rulemaking, and then be done with it.

the government is still allowed to deport that person to a different country if the other country agrees to accept them.

https://www.americanimmigrationcouncil.org/research/asylum-withholding-of-removal

All Trump needs is a backup country to deport everyone to who can't be deported to El Salvador. Any ideas?

But you should have some damn sympathy for a fellow citizen's suffering.

Progressives, especially post-Hart-Celler, have diluted and deconstructed the meaning of citizenship to such an extent that there are tens of millions of individuals in this country with whom I share almost nothing in common except for a legal fiction. There’s a good chance that the people you’re talking about do not even speak the same language I do, nor have they even needed to learn to do so in order to be considered citizens. They and I have no common bonds of kinship, of culture, of social context. Nothing!

I extend to them the basic human empathy I’d extend to any non-American, and I wish the situation were not such that this sort of nothing needs to happen to them. But the fact that they have a piece of (digitized) paper saying they’re as American as I am means nothing to me.

Progressives, especially post-Hart-Celler, have diluted and deconstructed the meaning of citizenship to such an extent that there are tens of millions of individuals in this country with whom I share almost nothing in common except for a legal fiction.

Can you give some examples of "diluted and deconstructed the meaning of citizenship?"

There’s a good chance that the people you’re talking about do not even speak the same language I do, nor have they even needed to learn to do so in order to be considered citizens. They and I have no common bonds of kinship, of culture, of social context. Nothing!

I'd be open to making the naturalization test English-only, but why isn't having passed the naturalization test evidence of commonality?

What does being an American mean to you?

My great grandfather came here on accident- the royal navy blockaded his home country- and he assimilated into a shotgun wedding and becoming a self made millionaire before the war ended. Was he American? How about the intentional Ellis islanders? A third generation Mexican American who speaks English and Spanish equally poorly?

They are not American to you.

Your attitude makes you unworthy of being an American to me.

So goes our country.

  • -17

I mean I think there are limits. A real, legitimate citizen, naturalized absolutely should have every right in America as a native citizen. But when this get brought up, basically anyone who gate crashes the border is now a de facto citizen in the eyes of much of the left and of course only those terrible people on the right think such gate crashes should leave. And I don’t think that’s unreasonable. We can’t do that because we don’t have room for billions of people to come here and simply squat. They need to go home.

This reads as if you are trying to paper over how Hoffmeister and others on your side do not care about actual citizens.

Deporting illegals. Fine, that's a total valid outcome for Trump winning an election.

Celebrating the cleaving of an American citizen from their spouse and parent? That's wrong, and I think you know it.

I’m not sure what you’re even talking about. The man who was deported is not an American citizen. His wife, who is, married an illegal immigrant — presumably aware that she was doing so — and bore him a son. Don’t you think she should have foreseen, as a reasonable outcome, that he would eventually be identified as an illegal immigrant?

We separate criminals from their spouses and children every day. Inmates don’t get to bring their wives and children to prison with them, and presumably you would not advocate for them to be permitted to do so. Similarly, we separate illegal immigrants from their citizen spouses and dependents when we deport them. This is a totally reasonable outcome. Don’t marry illegal immigrants!

People on the left fearmonger about the idea of American citizens being wrongly deported.

This is very unlikely for several reasons:

  1. Naturalized immigrants all have papers and are in the system

  2. US citizens born abroad have their births registered to obtain identity documents (to first travel to the US)

  3. 'Birthright citizens' almost always have parents who realize how valuable citizenship for their kids is, so are likely to have a birth certificate

  4. Legacy Americans with no birth certificates for whom obtaining proof of citizenship is otherwise impossible can be DNA tested and will show a big web of extended family in the US that will confirm US-born ancestors

The few people who would be wrongly deported given these safeguards would be a handful extremely stupid people with no family who care about them at all, which suggests an asocial streak that would likely be little missed in any case.

This is conflating risk and hazard (in addition to being yourself antisocially callous or glib about people "that would likely be little missed" ... by you): The risk may be low (if people are given due process, prior to deportation, which has unfortunately become an "if"...), but the hazard is very, very high.

I'm as opposed to "open borders with extra steps" as the next Motter, but saying concerns about extreme hazards are "fearmongering," because the hazards are low risk is itself a motte-and-bailey.

Something like 100 US citizens have been wrongfully deported the last two decades. I can't find any case law about it though. It seems the error is discovered (or a complaint is made) and they are eventually awarded damages. The government has apparently never argued that our courts have no jurisdiction over these deportees, but I'm not clear why the arguments being posed by Trump's lawyers would be any different?

Because US citizens have different rights than illegal aliens whose deportation proceedings have been stayed due to an executive order?

Okay so suppose a US citizen is wrongfully held in a foreign prison. What could a US court do to fix that? The executive has a lot of tools to fix that, but courts don't? If the executive is not interested in fixing it, aren't they just screwed?

I'm not sure you can effectively execute a detailed genetic testing plan from an El Savadorean gulag, but even if you could, and even if a US Court accepted it, it wouldn't matter much to your jailors.

Seems like a claim of actual citizenships should give the individual the right to some kind of summary hearing in front of a neutral party to make that case.

That stuff can just be gamed. If an individual has no US passport or birth certificate, they can be deported and then - if they win their case upon appeal or their family / some NGO appeals on their behalf - they can be paid $250k in compensation and flown back. Special procedures can easily be implemented for the Amish or Mennonites or whatever (who are obviously not just going to be picked up by ICE).

Most of the kind of Americans who would be accidentally deported under this policy would be overjoyed to make a quarter million dollars for spending 2 weeks in a Salvadoran gulag.

But all of this could be avoided by just ensuring due process before anyone is deported. Why would we intentionally give the federal government this kind of power that could easily be abused? It serves no purpose other than removing a miniscule number of illegal immigrants who have no real effect on anything.

It is, as you say, unlikely.

But I am still concerned when the US Department of Justice argues that if it did happen to me, I would have no redress.

I mean are dna tests acceptable evidence for that?

I agree that in practice US citizens are not going to be locked up in an El Salvadoran gulag.

I know this is whataboutism - and I’m not making this argument, just kind of stating how I feel - but, and this does suck, we killed a million Iraqi’s and Afghans and fucked our good will for decades … why do I care about this dude?

It’s an oopsie - it’s not a US citizen - it sucks but, man it just gets a big who gives a fuck from me.

Get him back eventually and give him a million bucks - I’m not saying it’s a non story but I bet minus the destination, we’ve made a few thousand similar mistakes over the last twenty years.

Or maybe it’s the opposite of TDS for me - maybe I just downplay every story because every story for 10 years has been amplified to 10.

Hard to tell.

In quality adjusted life years, this pales in comparison to the Iraq war.

Most civilians the US killed in Iraq were killed within the rules of engagement. While scholars of international law might have various ideas about the legality of invading Iraq, but from my recollection there was never a US court injunction against using bombs in Iraq.

The crimes which really enraged the public were not the median civilian killed by a bomb, but outliers like Abu Guraib. This is just a consequence of humans being scope insensitive, but also, you are who you are on your very worst day -- "but have you considered all the days of my life when I did not kill anyone" is not a very successful defense.

maybe I just downplay every story because every story for 10 years has been amplified to 10.

I feel this way whenever Trump says something truly 'out there' like wanting to make Canada the 51st state.

Okay, yeah, that's pretty crazy to outright say it. But meh, unless he started massing troops at the border you can't arse me to care when every second sentence out of his mouth for 4 years was turned into a national headline predicting immediate doom.

The dude blew up one of Iran's top generals INSIDE Iraq during his term, and we didn't actually see a war with Iran. There's no reason to keep declaring 4 alarm fires just because Trump is blowing smoke.

So yeah, I'm going to tend to assume that almost every crisis the media portrays is in fact exaggerated until proven otherwise.

It's not that you should care about this dude. It's that you (presumably, given your comment) live in a country with a legal system that primarily makes decisions based on precedent, and "this one weird trick lets the government sidestep due process requirements" is a terrifying precedent to set.

If the "administrative error" argument actually stands up in court, that is.

I agree with you, but I'll note that our entire legal system seems to be based on "one weird trick"s, all the way down. That's how they got a felony conviction against Trump for a misdemeanor whose statute of limitations had expired. Unfortunately if the system really wants to get you, they will. I don't know how to fix it, but at the very least let's keep calling it out wherever we see it.

Baby, bathwater.

Almost none of our legal system relies on that sort of chicanery. Rewarding any administration for doing more of it is a terrible idea.

terrifying precedent

I was terrified when the democrats stopped listening to the court system (ex: gun control), ignored violent protests (BLM) and engaged in unprecedented law fare against individual politicians and an entire voting block (ex: anti-BLM, J6).

This is just more of the same or better than all that.

Most of the stuff you mention is entirely orthogonal to ignoring the court system. Police getting deployed is a political decision, and the safeguard against politicians failing to stop violent protests is to vote them out of office. Law fare -- while problematic -- is explicitly using the court system.

If you have a story about someone who was imprisoned for a gun regulations charge, and the courts ordered their release and then the democrats said "haha" and kept them imprisoned indefinitely, please share it.

"Our protestors don't get charged with anything and your protestors are the recipients of an unprecedented manhunt" IS abuse of the court system. Who to charge and over charge is weaponization of the legal system.

The law fare against the NRA and Trump and so on is abuse of the court system.

The ignoring of SC rulings on gun control is abuse of the court system.

It is not the EXACT SAME abuse of the court system but demanding it be is missing the point.

Having no redress to those abuses - e.g., nobody has standing has to challenge or slow-rolling proceedings until the case is moot - is using the court system.

I'm definitely not saying that this is the first instance of the executive branch trying to circumvent due process requirements, or the worst instance. I don’t even think this is in the top 3 worst cases since the turn of the millenium (for those I'd say operation chokepoint, national security letters, and guantanamo bay, probably in that order of severity).

But each new bad precedent is in fact bad, and still the sort of thing I'd like to see less of rather than more of, and I'm sad when I see people on here who cared a lot about due process 2 years ago abandon that now.

Edit: On examination of the case, this the Trump admin defying the court, rather than the Trump admin finding a legal loophole that the court agrees with. So yeah, to your point, "executive branch does not listen to judicial branch" is obnoxious and worrying but I agree that this is less of a somethingburger than I originally thought on account of this AFAICT not actually setting any new legal precedents.

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.

It's possible in a 2016-2020 Trump Admin, this is an argument I would have cared about. But I literally just lived through an administration that forced me to take an experimental vaccine. Luckily my only side effect (so far) is permanent tinnitus. But the manufacturer is shielded from liability, and so is the government which forced it on me. I mean I guess the supreme court struck down that mandate... but they did so after the deadline by which I would have immediately lost my job, so thanks for nothing. I wouldn't mind some redress. What's my inability to fall asleep because of the ringing in my ears worth?

We just lived through an illegal eviction moratorium. After the Supreme Court decided it was illegal, were any of the people harmed by that offered any compensation? Were the landlords compensated for being forced to house squaters? Or did Blackrock roll up their foreclosed homes?

What about all these federal programs to relocate, house and feed migrants of questionable immigration status, and all the crime and destruction of institutions it caused? Do any of the communities that had hoards of barbarians air dropped on them by the feds get any sort of redress? What about the victims of unquestionably illegal immigrants? People who lost family or were otherwise horribly victimized because the Biden administration just ignored immigration law? Where were all these arguments about "If congress passes a law funding blah blah blah the executive must enforce those laws"? Where were the nationwide injunctions, or the concerns about redress for the victims of illegal alien crime? How was it not a constitutional crisis that uncounted millions of illegal and questionably legal aliens were allowed to invade over 4 years?

This might be bad. But I just can't possibly be made to care. I don't want to hear about "redress" given the profound damage the last administration did completely scot-free. Until I see Fauci behind bars, I'm happy letting ICE run completely amok and plead "qualified immunity" to all of it. Let Trump give them all preemptive pardons. Have them show up at people's doors with those instead of warrants. I don't care anymore. I already saw from 2020-2024 that the law doesn't matter. I'm certainly not going to let arguments about principle matter to me now. This is power politics now baby.

Biden flew in hundreds of thousands of illegals and somehow the courts found that nobody had standing to challenge it.

What case was this?

Texas v. DHS (not the other Texas v. DHS)

https://aflegal.org/litigation/texas-et-al-v-dhs-et-al-chnv-parole-case/

How did the CHNV parole programs constitute the Biden administration flying in hundreds of thousands of illegals?

Not OP, but perhaps United States v. Texas

In 2021, after President Biden took office, the Department of Homeland Security issued new Guidelines for immigration enforcement. The Guidelines prioritize the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals, or who have unlawfully entered the country only recently, for example. Texas and Louisiana sued the Department of Homeland Security. According to those States, the Department’s new Guidelines violate federal statutes that purportedly require the Department to arrest more criminal noncitizens pending their removal. The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests. But this Court has long held “that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973). Consistent with that fundamental Article III principle, we conclude that the States lack Article III standing to bring this suit.

Let’s say you’re walking down the street and a black guy steals your phone. Later that day, this same black guy is minding his own business when he is attacked, arrested, and beaten within an inch of his life by an unabashedly racist police officer who is an open member of the KKK. The police officer notices the cell phone, which he finds out later was reported missing by you, and returns it to you. Further investigation reveals that the police officer had no probable cause, and simply assaulted the man because he was black. Do you have to give him your cell phone back?

The answer is obviously no, right? Just because the black man has a clearly justified claim against the government, doesn’t mean that we have to recommit all of the crimes that the unlawful state action righted. Compensation should be made in a different way.

Okay, what is an adequate compensation for likely having to spend the rest of your life in some Latin America prison? At what monetary sum would you be indifferent between getting locked up and getting the compensation and being free and getting nothing?

Presumably, a million US$ will not buy you freedom, but 100M$ -- if invested wisely in campaign donations -- might see you getting freed within a year and living in a mansion for the rest of your life.

I actually think if there's a court order preventing the government from taking the black guy's phone, and the government knowingly grabbed it anyway, then the government should return it back to him. Yes, even if it seems counter-intuitive.

It's similar to the fruit from the poisonous tree doctrine; yes, the evidence is true and overwhelming that the criminal did it, but we let them go anyway because the government obtained the evidence illegally. Also very counter-intuitive. We KNOW the fucker did it, it's bad that the government illegally obtained the evidence but that's in the past, and we have the evidence now, why can't we use it to lock them up? I assert it's the same reason as in this case. It incentivizes the government to take the expedient "the-ends-justifies-the-means" approach which negatively impacts innocent people.

I actually think if there's a court order preventing the government from taking the black guy's phone, and the government knowingly grabbed it anyway, then the government should return it back to him. Yes, even if it seems counter-intuitive.

This sort of argument quickly leads to absurd places. Should the government return a kidnap victim to her kidnapper, if she was only found because a racist cop didn't like the look of some black guy who they later found out was hiding stolen children in his basement? Should the government refuse to act on the knowledge that a massive terrorist attack is being planned, if that knowledge was acquired by a racist cop roughing up a shifty-looking Arab?

The rule is not that the police have to literally undo all their previous actions or not act to address an imminent threat in the event of a procedural mishap, intentional or otherwise, it's just that evidence obtained in that way is not admissible in court, increasing the chances that the kidnapper and terrorists in your examples would walk free. In the most egregious cases, I imagine you could get a jury nullification-adjacent situation where the jurors, despite "not being allowed to consider" the tainted evidence, unanimously vote to convict.

Jury nullification is one-way only. If a jury convicts and the judge thinks it's bananas, the judge can generally set it aside. But the judge can't set aside a jury acquittal because that would violate the right to trial by jury.

I don't think the incidental discovery thing is quite as important as a court specifically prohibited the action to be taken. If a court ordered a kidnap victim to not be separated with her kidnapper, then my first inclination is that this is fake news and to dig into the court documents to see what really happened. Similarly in the hypothetical that a court is prohibiting the government from stopping a massive terrorist attack for whatever reason.

The fruit from the poisonous tree doctrine as applied in the US is pretty stupid. It is beyond retarded that good faith procedural errors can allow obviously guilty men go free. Most of the rest of the world does not have it, or does not have it to the same extent as US does.

A good faith error is literally a named exception to the exclusionary rule.

The problem is that just about every error can be made to seem good faith.

Can you explain how it is a problem? It's not immediately clear to me, and it's apparently not immediately clear to most of the legal systems around the world, given that they do not subscribe to the extensive application of this doctrine.

Sure. I believe that the cops should not have near-infinite leeway to bend the rules and trod upon civil liberties to secure a conviction so long as they can convincingly make up a story about how they e.g. executed a warrantless wiretap in good faith.

Oh, we can continue applying the doctrine to illegal wiretaps just fine, that's not my problem with it. My problem is things like, if you fail to recite a specific magic incantation before your suspect confesses to the crime, you must disregard that confession.

So your objection is basically just to Miranda rights?

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Spontaneous confession is in fact an exception to the requirement to read the suspect their rights. The "magic incantation" is only required before custodial interrogation.

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They just put people in prison regardless of the cops beating a confession out of them or tossing their place without a warrant or whatever, and no one has a problem with that. (or at least they better not)

IMHO a better solution to the "fruit from the poisonous tree" rule would be "the criminal defendant can be in prison when the criminal cop is too". Two crimes get two sentences, not zero. Making one sentence contingent on the other would be sufficient to fix the bad incentives.

In this case, though ... do we even need to imprison the "defendant"? "A confidential informant said he was MS-13" got him held without bond after he was arrested for loitering, but never got a conviction. "The cops think this gang-member-turned-snitch is very trustworthy now" is a good place to start an investigation but surely it's not a good enough place to end one; police informants are sometimes themselves motivated more by base incentives than by a newly-acquired love of honesty and justice.

IMHO a better solution to the "fruit from the poisonous tree" rule would be "the criminal defendant can be in prison when the criminal cop is too". Two crimes get two sentences, not zero. Making one sentence contingent on the other would be sufficient to fix the bad incentives.

The outcome of that would be judges looking the other way to avoid putting cops in jail.

So then we're back to the status quo of zero sentences in N% of cases, but we get justice in 100-N%? Since N will be less than 100 that still sounds like an improvement.

I think N would be near enough to 100 not to matter. Putting cops in jail for misconduct is very unpopular. Any prosecutor who tries it ends up getting shunned by the cops and losing his career as a result. A few years ago a couple of NYPD cops even beat up a judge and got away with it.

A few years ago a couple of NYPD cops even beat up a judge and got away with it.

Source?

https://archive.ph/3miok

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I think N would be near enough to 100 not to matter. Putting cops in jail for misconduct is very unpopular. Any prosecutor who tries it ends up getting shunned by the cops and losing his career as a result. A few years ago a couple of NYPD cops even beat up a judge and got away with it.

If the primary problem is cops who beat citizens (or mishandle investigations, ignore procedures, etc) when they think they can get away it, that should be the problem directly to solve.

"Fruit of poisonous tree" is not working very well. Cases where it should be apply, may get parallel construction and other lies to "hide the poison" (hopefully rarely), yet criminals who face procedural errors walk free (quite often). Evidently criminals walking free is not enough of incentive for the rotten parts of the tree to become less rotten.

If the primary problem is cops who beat citizens (or mishandle investigations, ignore procedures, etc) when they think they can get away it, that should be the problem directly to solve.

Yes, and the way it is solved is by changing incentives so when cops mishandle investigations, ignore procedures, and beat citizens, the defendant is freed and the police have egg on their face. Punishing the cops for doing it would be great but is never going to happen.

Evidently criminals walking free is not enough of incentive for the rotten parts of the tree to become less rotten.

Not the remaining rotten parts, no.

A few years ago a couple of NYPD cops even beat up a judge and got away with it

Based

Aww, put a little more effort into it than this!

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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:

§1731. Protection to naturalized citizens abroad

All naturalized citizens of the United States while in foreign countries are entitled to and shall receive from this Government the same protection of persons and property which is accorded to native-born citizens.

Bonus points:

§1732. Release of citizens imprisoned by foreign governments

Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen...

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.

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 status to be here.

"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.

BUT I WOULD ONCE AGAIN SUGGEST THAT SUCH PEOPLE CAN PETITION THEIR HOME COUNTRY FOR REDRESS.

Isn't this guy actually Salvadoran? His home country is the one holding him in prison, which might complicate efforts to ask for him back even if the administration wanted to. Unless it's something they explicitly negotiated, it seems a bit odd to argue for jurisdiction. "Please send us this guy of yours you have in prison, we don't think he did anything wrong" doesn't work for political prisoners internationally most of the time.

I mean if the US said "we are no longer going to pay you to keep this guy in prison" and El Salvador said "ok cool but we're still keeping him" then I think the admin's "we don't have jurisdiction" argument would hold together a bit better. They should try it.

Only tangentially related: I wonder if the US is paying any other countries to keep their own citizens imprisoned. I wouldn't be surprised if there is foreign aid for "criminal justice" tied to anti-terrorism laws, for example.

I can agree with most of this and I believe you are internally consistent. My worry is that there's a negative incentive here. There's nothing to disincentivize the government to do the wrong thing in your framework. I believe the US government should be compelled to reverse its actions if it accidentally removes someone who has the authorization to be in the country and ships them off to a foreign prison (regardless of whether the government can be compelled to do so in the current legal framework). Otherwise, the government is not disincentivized to commit more "oopsies" in the future, and it becomes much more likely to incorrectly ship people to foreign prisons, causing tremendous individual harm to people who may not deserve it.

My worry is that there's a negative incentive here. There's nothing to disincentivize the government to do the wrong thing in your framework

Perhaps.

But under the previous setup, there was nothing to disincentivize people from coming in illegally, since they knew that even if they got 'caught' it could take a long time for 'due process' to occur before they get removed.

I strongly believe that's the goal of the current actions the admin is taking. Make it clear that you can't just hop the border and expect to stay here for years while your case is held up endlessly in court. You have a real chance of getting removed, and a real chance of ending up in a foreign prison if you have a criminal record.

I DO NOT think that the Trump admin wants to deport thousands upon thousands of criminals and pay for them to stay in an El Salvadoran prison. There's no strong benefit to having to pay for their imprisonment indefinitely, vs. kicking them out and not have to worry about them returning.

Now, your concern becomes very valid if it comes to intentionally targeting noncitizens for removal as a means to, e.g. punish dissent or scare citizens into taking or refraining from taking some action.

But I don't think there's any way around the fact that a national government claims the inherent authority to decide which foreign parties are and are not allowed to be in the country. And thus you can't expect them to accept a regime where ANY attempt to remove noncitizens, regardless of justification, has to be held up by the courts before it is executed.

Like, we agree that if there were an active war popping off, the U.S. would be justified in kicking out any citizens of the enemy nation that were residing in its borders, yes?

Trump is in fact trying to make the argument that there's an 'invasion' occurring, and so you can see how this might slide the situation into a bit of a grey area.

I believe the US government should be compelled to reverse its actions if it accidentally removes someone who has the authorization to be in the country and ships them off to a foreign prison (regardless of whether the government can be compelled to do so in the current legal framework)

I think if this becomes enough of an issue then yeah, perhaps there should be some actions taken by the home countries of the person in question.

Like I can't believe nobody seems to think that the countries that these people are nominally citizens of aren't interested in freeing them from a foreign prison? Why is everyone expecting U.S. COURTS to intervene on behalf of foreign nationals???

I also think the economic incentives are such that if the U.S. accidentally removes people who are doing very productive work for the U.S., then various parties have reason to intervene and pay large sums of money to both retrieve them and lobby to prevent it from happening again.

I’m in agreement on the incentives both for the protests on college campuses (in which at least two students lost visas) and the mass deportations. The point is to let both the public and potential immigrants that the days of crossing into the USA and just staying forever and doing whatever you want are over.

I think long term we need some sort of expedited hearing system to prevent mistakes and allow people to question the deportation. But that can’t happen until the numbers are low enough that you can have reasonable processes. As it stands now, the legal immigranttion process is extremely difficult and takes almost a decade unless you qualify for H1B. The process for asylum is overwhelmed because everyone who gets caught knows they get to stay if they claim asylum, and they know it will take years and suspect that Congress will eventually pass another amnesty before the hearing ever happens.

Until you get this into a position where the numbers are less than what can be reasonable to have our system handle with some speed — maybe clearing the median case within 3-4 months instead of a decade — I just don’t think the logistics work.

I'm NOT certain if it then follows that they can demand that the U.S. return them back to U.S. soil.

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!

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.

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.

In this case, it's not so much "the next town over" as it is "home": the guy in question is a citizen of El Salvador. Although I think there are reasonable asylum claims about how one's own (legal) country will treat them, and maybe even those are sufficiently sympathetic here, but it does complicate the "sent to random country" narrative.

In this case, it's not so much "the next town over" as it is "home"

Okay, so let's say he dumped me back in my home town. But I left all my stuff at his place before he deported me and, since I intended to stay in town for the night, I had dinner reservations in the morning. No matter how you slice it, being unexpectedly moved across borders at short notice is a serious inconvenience at best, and the government ought to make it up to people if it forces it upon them by mistake.

Your analogy misses some key important points (e.g. the neighbor house party should be a strict invite only event, and you only got into it because you literally snuck through the window), but more importantly, the issue is not compensation for plane ticket. I'd be happy to give that guy $1000 for him to fuck off. He can buy plane ticket to US with it, but he will not be admitted into the country, because the US government is under no obligation whatsover to admit any noncitizens into the country.

(e.g. the neighbor house party should be a strict invite only event, and you only got into it because you literally snuck through the window)

This comment-thread is about how to treat non-citizens who were legally on US soil and are then mistakenly deported. Which may or may not describe this particular guy, but we'd moved beyond talking about him in particular.

I don't understand how either of those statutes defeat the redressability argument. What is the order a court could issue as to the government in the case of a citizen that it couldn't in the case of a non-citizen that would effect that individuals return? Quoting from the government's reply (citations omitted):

When “[t]he existence of one or more of the essential elements of standing 'depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,’ . . . it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to . . . permit redressability of injury.” Here, “Plaintiffs’ injury can only be redressed by [a] foreign nation[] not before the court.” Plaintiffs concede that Abrego Garcia is in the custody of El Salvador, a foreign sovereign over which this Court “has no jurisdiction.” Plaintiffs instead seek orders from this Court directing the United States to obtain Abrego Garcia’s release from Salvadoran custody by financial pressure and diplomacy. But they have made no showing that such measures are likely, not merely speculative, to obtain the ultimate relief they seek—Abrego Garcia’s release. There is no showing that any payment made to El Salvador is yet to occur; no showing that El Salvador is likely to release CECOT detainees but for any such payment; no showing that El Salvador is even inclined to consider a request to release a detainee at the United States’ request.

...

Because this Court has no power over a foreign sovereign and because Plaintiffs have not clearly shown that enjoining Defendants as Plaintiffs ask will likely redress their injuries, Plaintiffs lack standing for the relief they seek.

What would be different about this analysis if Abrego Garcia were a citizen? Sure maybe the Plaintiffs could point to 1732, why would that matter? What is the order of the court that would redress the harm in the case of a citizen but not a non-citizen?

"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.

The procedural steps you denigrate are important, as here, to ensure that such a person is actually removeable!

The procedural steps you denigrate are important, as here, to ensure that such a person is actually removeable!

Correct! Except I'm not 'denigrating' them, I'm pointing out that by the migrants skipping procedure, they've made it that much harder to employ due process protections.

If they didn't skip the steps when entering the country, it would be MUCH easier to determine their rights and status under the law! Government would have some record of their entry, they'd presumably be able to present some tangible evidence of their status, and they might actually have a case file open to process their claims to stay here.

So I'm not all that surprised that the Admin is shortcutting the "remove them from the country" part by taking advantage of the fact that they lack strong proof of their entitlement to remain here.

What would be different about this analysis if Abrego Garcia were a citizen?

Because a U.S. Citizen would actually have a cognizable entitlement to make the government follow through on a 'duty' that they can implore the U.S. Government to actually act on, via the U.S. Court system.

To wit:

it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen...

"I am a U.S. Citizen held in a Foreign Prison, there is no justification for holding me, do your job and take the steps to get me out."

Vs. a foreign national trying to use a U.S. Court to force a foreign goverment to do something. When said foreign national should presumably be asking their HOME COUNTRY for help. Why are they demanding the U.S. take action rather than their home country?

No, a U.S. Court has no jurisdiction over a foreign sovereign government, but they can order the U.S. to comply with its own laws and do the thing where it retrieves a U.S. citizen from Foreign custody. Which should be pretty easy when the U.S. is the one that is paying to keep them there.

As we're finding out, though, that's a precarious thing for a Court to do when the Executive does not want to follow their instructions and has some legal basis for ignoring/bypassing them.

I just don't think there's an argument for bypassing procedures for U.S. Citizens.

If they didn't skip the steps when entering the country, it would be MUCH easier to determine their rights and status under the law! Government would have some record of their entry, they'd presumably be able to present some tangible evidence of their status, and they might actually have a case file open to process their claims to stay here.

And at what point is he supposed to actually present this evidence?

Well, once at the time he was originally arrested/detained. This is why if you're traveling through a foreign country you're supposed to keep your passport and/or visa on your person.

If he had documentation proving his right to be there with him and they still arrested him (sans evidence of another crime) then I agree that is a due process violation.

I don't think people would complain too harshly if an American citizen got arrested abroad b/c they lacked sufficient identification, and needed to call up the embassy to verify their identity and entitlement to presence in the country to get released, though.

And that would be his second chance to present evidence, when there's some hearing via either the U.S. or his home country to show proof of his status and/or disprove the basis for his detention so as to obtain release from custody.

And if he's an American citizen, then what? Is ICE just supposed to take his word for it?

And that would be his second chance to present evidence, when there's some hearing via either the U.S. or his home country to show proof of his status and/or disprove the basis for his detention so as to obtain release from custody.

Well, that's kind of the point, isn't it? In the present case the government is arguing that he isn't entitled to any hearing, even though they admit that he shouldn't have been removed. The whole process is designed to be impossible to challenge.

At least in Abrego-Garcia's case, the proceedings leading up to the October 10, 2019 hearing.

At which hearing he was granted protection from removal. Presumably, had he gotten a hearing this time, he could have presented that as evidence. As it was, he didn't get one, and neither would an American citizen. The whole point of OP's argument is that only citizens should be entitled to due process, yet there's an inherent contradiction in that one who isn't afforded due process has no ability to prove his citizenship.

My point is that he did have an opportunity to prove his citizenship. Any parade of horribles predicated on not getting one kinda has to run by that point. If you're centered on the removal to El Salvador rather than any other country, which is all his protection from removal covers, that's certainly fair, and no small oopsie woopsies fucky wucky from the Trump admin, to absolutely no one's surprise. But it's a different class of problem.

((While I'd argue that mistake should count as a due process violation, I'm not sure it actually does under existing law; Baker and progeny have left the bounds of the due process clause very narrow even for actual citizens after actual hearings.))

If they didn't skip the steps when entering the country, it would be MUCH easier to determine their rights and status under the law! Government would have some record of their entry, they'd presumably be able to present some tangible evidence of their status, and they might actually have a case file open to process their claims to stay here.

So I'm not all that surprised that the Admin is shortcutting the "remove them from the country" part by taking advantage of the fact that they lack strong proof of their entitlement to remain here.

I don't understand how this applies to the instant case. It is the sworn testimony of the relevant ICE Field Director that they knew at the time they removed him that it was unlawful and they did it anyway. Due to an "administrative error." There is not any controversy about Abrego Garcia's status or whether the government could lawfully deport him to El Salvador.

No, a U.S. Court has no jurisdiction over a foreign sovereign government, but they can order the U.S. to comply with its own laws and do the thing where it retrieves a U.S. citizen from Foreign custody. Which should be pretty easy when the U.S. is the one that is paying to keep them there.

If a court order commanding the United States government to withhold payment to El Salvador pending release of some individual is likely to lead to El Salvador releasing said individual back into US custody that seems like it defeats the redressability argument for citizens and non-citizens alike. The whole question is "is there any order a court could issue that would cause El Salvador to return the relevant individual?" If the answer is "yes" then the government loses on redressability.

It is the sworn testimony of the relevant ICE Field Director that they knew at the time they removed him that it was unlawful and they did it anyway. Due to an "administrative error." There is not any controversy about Abrego Garcia's status or whether the government could lawfully deport him to El Salvador.

I quibble with that reading of it. It isn't clear that the 'administrative error' was discovered before the guy was actually removed. The implication that he was removed on a 'good faith' basis says to me that whomever actually removed him thought the order was valid, and somebody else later noticed the mistake. I'm not taking them at their word, though.

But either way, the guy isn't required to be kept on U.S. soil, and I don't KNOW of any law (it might exist, but a google search and ChatGPT query didn't find it) that would require that the U.S. bring him back to U.S. soil.

Maybe they stop paying for his detention, he's released into El Salvador, and he can pay for a flight back?

I will reiterate: why doesn't he request assistance from his home country where he actually has citizenship?

The whole question is "is there any order a court could issue that would cause El Salvador to return the relevant individual?" If the answer is "yes" then the government loses on redressability.

Uh, not quite.

The Court has to have some statutory or common law authority on which to base an Order. Judges sometimes just issue orders to do things without such basis, and parties sometimes comply with it, but if the Court says "you are hereby directed to stop paying for the detention of this person on the basis of my own personal authority/interpretation of the law" then he's really overstepped.

This gets to the idea that Courts have very, VERY little power to intervene in foreign affairs matters, which are virtually unreviewable since they involve Plenary powers of the executive branch. Even SCOTUS doesn't claim authority to mess around with treaties entered by the Executive. If the President enters an agreement with a foreign government, Courts are usually not going to step in and interfere with that, for separation of powers reasons. Directly ordering the Executive to stop payments to a foreign government probably violates separation of powers.

(This is also why the use of the Alien Enemies Act is pretty likely to pass muster, although that relies on his military authority)

Ordering the Executive to carry out his duties under CHAPTER 23 §1732 and thus "to demand of that [foreign] government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen..." is just enforcing the legislature's intent and making the government follow its own rules.

So the order would have to be based on some legal entitlement to compel the U.S. government to do or stop doing something.

What statute exists that authorizes a non-citizen to compel the U.S. to take ANY steps whatsoever regarding their imprisonment in another country?

If we don't care about such basis, then the Judge might as well just unilaterally say "I declare that this person is a U.S. citizen for all pursuits and purposes and is thus entitled to be returned to the U.S. immediately."

But I suspect you'd agree that is beyond the pale?

I will reiterate: why doesn't he request assistance from his home country where he actually has citizenship?

Because it's the US who wronged him and have a responsibility to make it up to him.

Remember back when Trump issued a bunch of Travel Bans in his first term? Those were largely upheld by the Supreme Court, even though a LOT of immigrants/refugees/foreign nationals were 'wronged' by their implementation.

Because the interests of persons who are NOT citizens of the U.S. with respect to the U.S. Government are not nearly as sacrosanct.

He might or might not have a false arrest case.

If he thinks that the U.S. has wronged him, he should still probably go to his Home Country and ask them to represent his interests wrt the U.S.'s actions.

He doesn't really have the standing to compel the United States to do anything, and bringing suit against the Country would probably get his Green Card or refugee status revoked anyway.

The government has no responsibility to right wrongs in general. There are some specific laws that apply to some specific contexts, for example Federal Tort Claims Act (which would not apply here), but as a general matter, government enjoys sovereign immunity, which means that unless some specific law applies, it is under no obligation to compensate you if it wrongs you.

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.

Due process only exists if the parties involved sign on to the process

The reason you have due process for this kind of thing is that there are a variety of potential issues, like "actually I do have legal residency" or "I don't have legal residency, but there are legal reasons not to deport me (like I'll be killed)" or "I'm not who they claim I am".

"Bad guys don't deserve due process" is misunderstanding the reason we have due process.

the government should not have to legally bother to deport you, just pack you up and ship you home.

The Trump administration is not simply shipping people back to their country of origin.

And verification of identification and immigration status is right and proper. That does not take very long, a couple of days at most. What we have now is "due process" that involves multiple hearings with overbooked judges, strung out over months or years, with the alien in question continuing to reside in the country with no restrictions, and if it looks like they arr going to lose they can simply stop showing up for hearings.

One mans due process is another mans gross abuse of the system. The scales of justice demand balance.

I've also been trying to ascertain why they need to remain on U.S. soil to receive "due process."

Can't find anything that states that they have to be present in the U.S. for it to 'count.'

The part where they're removed to a different country isn't going to inherently prevent them from getting a hearing as to their legal status in the U.S.

What it does presumably do is make it almost pointless to pursue a hearing they know they'd lose.

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.

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.

More comments

So why was an ms13 gang member being legally shielded from deportation again? What system did that, and why is it legitimate?

an ms13 gang member

The alien claims that the govt. has presented no evidence that he's a member of any gang at all, let alone MS-13 in particular.

why was an [illegal alien] being legally shielded from deportation

The alien claims: in his hometown he was targeted by a gang; the persecution persisted even after his family moved three times (though only a 15-minute drive away each time); and sending the alien out of the country was the family's last resort. The immigration pseudo-judge believed that claim and granted withholding of removal. The govt. did not appeal that determination.

The alien claims that the govt. has presented no evidence that he's a member of any gang at all, let alone MS-13 in particular.

How about we check for ourselves?

Here is the specific claim from Abrego Garcia v. Noem linked by OP:

'19. Plaintiff Abrego Garcia is not a member of or has no affiliation with Tren de Aragua, MS-13, or any other criminal or street gang. Although he has been accused of general “gang affiliation,” the U.S. government has never produced an iota of evidence to support this unfounded accusation.

Here is what the government says in their DEFENDANTS’ MEMORANDUM linked by OP:

During a bond hearing, Immigration and Customs Enforcement (“ICE”) stated that a confidential informant had advised that Abrego Garcia was an active member of the criminal gang MS-13. Id. ¶ 31. Bond was denied. See id. ¶¶ 34, 39; see also IJ Order, infra Ex. A, at 2–3 (finding that Abrego Garcia was a danger to the community); BIA Opinion, infra Ex. B, at 1–2 (adopting and affirming IJ Order, specifically finding no clear error in its dangerousness finding).

...

Abrego Garcia is barred from disputing that, as a member of the criminal gang MS-13, he is a danger to the community. This factual finding was made in his bond proceedings before the agency, IJ Order 2–3, and he appealed that finding to the Board of Immigration Appeals, which affirmed it as not clearly erroneous, BIA Opinion 1–2. Because he did not seek further review of the Board’s decision, that decision is a final judgment precluding relitigation of the issues it resolved.

So the government has presented evidence that Garcia was in a gang (a confidential informant). And the court has found that he was in fact a gang member. And when Garcia appealed that finding, the finding was affirmed. Which he did not again appeal.

Seems... not ideal... that people can just make stuff up in the "FACTS" section of court documents. Why are people allowed to claim things as "FACTS" that clearly aren't facts? The government either has or has not presented evidence that Garcia is in a gang. Both can't be true, and both sides are claiming that they did/did not provide evidence. Someone's "FACTS" are not actually factual.

This clearly does not meet the standards of a criminal trial in any civilized country, including the US. He did not get to face and cross-examine his accuser.

Given that what is at stake here is El Salvador locking him up long-term, I feel it is reasonable to require similar standards of evidence to a criminal trial.

I would maybe agree with your feelings if Garcia made any effort to come here legally. But he did not. He chose to lie and cheat his way in. So I feel it is reasonable to deport him, regardless of the outcome.

The government presented evidence that he was in a gang and took advantage of an extremely lenient (towards the government) of review ("not clearly erroneous") to prevent him from challenging it. This actually makes me more disposed to believe he isn't a gang member, since he got procedurally screwed out of challenging the claim.

It makes sense when you watch the Twitter/Cable News discourse. The baseless accusation that the government presented no evidence is not in the documentation so that it can hold up in court. It's there so that talking heads on Twitter and CNN can quote those documents angrily and selectively. It's laundering talking points through legal filings.

I understand why it was done by Garcia's lawyer. But before I looked into it I would have assumed that its against the rules to lie to judges in the lawsuits (or whatever it was) you file. The claim is that:

the U.S. government has never produced an iota of evidence to support this unfounded accusation.

Which clearly is not true. They did have evidence. Maybe it was really weak evidence, I don't know, but it was evidence. I'm not a lawyer, but can you really just get away with blatantly lying like that?

Could be an exact-words thing. The informant is anonymous and his exact words haven't been made public. Therefore the U.S. government has not produced the evidence, though it claims to possess it.

though only a 15-minute drive

For context, based on a recent visit, 20mph is a good speed in El Salvador.

The IJ found that he faced a likelihood of being tortured if returned to El Salvador and so could not be deported there as part of the US agreement on the UN Convention Against Torture.

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