Testing Due Process

ICE tries to avoid oversight by sending migrants to countries where they have no ties

Good laws mean little if they’re not enforceable. Since Donald Trump returned to the White House, the Department of Homeland Security has tried to avoid having courts second guess how its agents choose to enforce the law – and from deciding when agents have gone too far. Two recent cases involving migrants who have received an immigration judge’s permission to live in the United States illustrate what happens when immigration officials are left to do what they like while courts stand aside. In one, a court has stopped ICE from sending a migrant to country where he will likely be persecuted. In another, at least one person is already hiding, and others fear that they are next to be handed over to people who U.S. officials agree are likely to persecute them.

Photo by Felix Luo on Unsplash

On September 5th, five citizens of Nigeria and The Gambia, all of whom were being held in one of ICE’s immigration prisons and whose names don’t appear in court records, were forcibly removed to Ghana. None had any ties to Ghana. All had received one of two forms of protection in the United States available only to people who can prove that they are likely to be persecuted if returned to a specific country.

That same day, an asylum officer who works for DHS met with José Cruz-Medina, a citizen of Honduras, and decided he wasn’t likely to be persecuted in México. Four days later, ICE told Medina Cruz that they planned to send him there even though they had repeatedly told him and a judge overseeing his attempt to fend off removal that he would go to El Salvador. Years earlier, Medina Cruz has been granted fear-based protection against deportation to Honduras because he had convinced an immigration judge that his fear of persecution there was legitimate.

All these migrants have sued Kristi Noem, Trump’s Secretary of Homeland Security, claiming that the government is violating the legal protections they previously received. At least one of the Nigerians or Gambians has already been sent to a country where he is likely to be tortured, according to U.S. District Judge Tanya S. Chutkan of the federal district court in Washington, DC. This is where their fate parts.

In an opinion dripping with sympathy for people who are likely to be persecuted, Chutkan announced that there was nothing to be done about the ICE’s tactics. Though all of the Nigerians and Gambians had received withholding of removal or deferral of removal barring U.S. officials from sending them to their country of citizenship, none had received protection from deportation to Ghana. Lacking any ties to that country, there is no reason they would have ever asked not to be sent there. And they had no idea U.S. officials were thinking about sending them to Ghana until they were awakened in the middle of the night on September 5th, “shackled, and put on a U.S. military cargo plane.”

Once they reached Ghana, as they had by the time they sued, they were beyond the court’s reach. The federal court is powerless to order DHS to tell Ghana not to send them wherever it likes even if Ghana is likely to send them to the very place where an immigration judge in the United States feared they would be killed, tortured, or otherwise persecuted. “This court cannot order the U.S. government to order a foreign government to take any action, despite facts in the record indicating that this agreement may have been designed to evade Defendants’ obligations to Plaintiffs,” Chutkan wrote in a September 15th decision in D.A. v. Noem. “The court does not reach this conclusion lightly,” Chutkan added. “But its hands are tied.”

By contrast, Cruz-Medina, who was granted withholding of removal in 2019, was still in the United States when he sued Noem. He’s still here, passing the days inside an immigration prison. And that’s where he’ll remain at least until an immigration judge reviews the asylum officer’s decision that he won’t be persecuted in México, U.S. District Judge Adam B. Abelson announced this week. There is “no rational basis for stripping Mr. Cruz-Medina of the opportunity to appear before an immigration judge,” Abelson added in Cruz-Medina v. Noem. Without an opportunity to contest the asylum officer’s decision, Cruz-Medina would be denied the right of due process that the Fifth Amendment to the U.S. Constitution guarantees.

The contrast between these two cases could not be starker. Everyone who ICE is targeting in these matters has gone through the immigration court process in the past. Each has carried the heavy burden of convincing an immigration judge that their safety would be at risk if sent to the country where they hold citizenship. And in each instance now, the Trump administration has tried to remove them to a third country without giving them an opportunity to consider whether they might be persecuted there too. There is no guarantee that Cruz-Medina will convince an immigration judge that he is likely to be persecuted in México.

DHS is tapping the authority that the Supreme Court gave it through a short emergency docket order released in July. In that case, a federal district court in Massachusetts had blocked ICE from removing people to countries where they have no ties, but the Supreme Court twice weighed in on the Trump administration’s side without ever explaining why.

Process matters whatever the outcome. The essence of due process is that the government can’t pluck people off the streets or out of their homes without explaining its legal authority to a neutral decision-maker: a judge. “No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done,” the Supreme Court announced in its 1951 decision Joint Anti-Fascist Refugee Committee v. McGrath.

With an assist from the Supreme Court, ICE is testing our commitment to that basic principle.