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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.
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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.))
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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.
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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.
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