This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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.
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
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 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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
More options
Context Copy link
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.
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.
More options
Context Copy link
More options
Context Copy link
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.
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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):
...
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?
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.
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:
"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.
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?
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.
More options
Context Copy link
More options
Context Copy link
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.))
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
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.
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?
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?
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.
More options
Context Copy link
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
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 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.
More options
Context Copy link
More options
Context Copy link
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.
More options
Context Copy link
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.
More options
Context Copy link
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.
True. I think the media is trying to blow these cases up to gain public sympathy. So far it seems to be failing as polls show voters approve of Trump on illegal immigration
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link