The illegal aliens should bear the burden of a problem of their own making.
The illegal aliens should bear the burden of a problem of their own making.
I t upset the Supreme Court’s three progressive justices and their fans at the New York Times, but the Court’s conservative majority was on solid ground earlier this week in staying a lawless order imposed by a federal district judge in Massachusetts that effectively barred the Trump administration from deporting illegal aliens to “third countries” — i.e., countries to which they neither choose to be deported nor have ties of citizenship, birthright, residence, or prior travel.
I wrote about the case a month ago, contending that the Supreme Court must reestablish the bright lines of federal immigration law. Congress has sought to divest federal district judges of jurisdiction and restrict judicial review of cases involving removal of illegal aliens to a single challenge before a circuit court of appeals — limited to purely legal objections, with the circuit generally required to accept the fact-finding of the Justice Department’s immigration tribunals.
As we’ve noted a number of times, immigration “courts” and the Board of Immigration Appeals by which the rulings of immigration “judges” are reviewed are components of the Justice Department — i.e., they comprise executive branch officials subordinate to the attorney general and are not part of the judicial branch. Asylum officers who first interview illegal aliens claiming to fear persecution if deported are also executive branch officials (they work for U.S. Citizenship and Immigration Services, a component of the Department of Homeland Security).
Congress has set up the system this way because the judiciary’s participation in immigration enforcement should be negligible. It involves (a) non-Americans whose due process rights are limited, and (b) questions about which non-Americans are permitted to be present in our country, and diplomatic considerations attendant to the transfer of aliens between nations — both of which are quintessentially political, not judicial.
Donald Trump won the presidency largely on the immigration issue, with President Biden having recklessly gutted border enforcement, inviting more than 10 million “migrants” to enter the country in violation of congressional statutes. In their haste to make good on Trump campaign commitments to massive deportations, the president and his top advisers on immigration enforcement have failed to recognize how strong our immigration laws are.
In essence, administration officials are shooting at the wrong target: The problem with the enforcement system is not, as they claim, that aliens have too many rights; they don’t, and divesting them of the modicum they have would imperil Americans. The problems are that (a) Democratic administrations have refused to enforce the immigration laws, encouraging aliens to enter illegally, and (b) with a total illegal alien population of more than 20 million, Congress has declined to provide the immense enforcement, detention, and processing resources that would be necessary to address the years-long backlog of removal cases. (The latter problem is not neglect; it’s an intentional strategy by progressive Democrats who do not believe that the United States should have borders.)
Because he is unwilling to press for more resources (with deficit spending already at unsustainable levels), President Trump has tried to circumvent immigration law, making edgy and sometimes untenable claims of power to carry out summary deportations. This has had the predictable effect of bringing district judges back into the immigration-enforcement mix: When the government arrests, detains, and/or seeks to deport an alien in contravention of congressional law, the alien has a right to challenge such actions in habeas corpus lawsuits, over which the federal district courts have jurisdiction.
Inexorably, this has led to judicial mission creep: The judges are back in the mix precisely because the administration has developed a reputation for acting illegally (and for flouting judicial directives); the legions of lawyers who are advocates for illegal aliens are thus emboldened to file legal claims that district judges lack jurisdiction to consider; and the judges, especially the progressive Democratic appointees, are similarly emboldened to ignore the limits on their authority — ironically, they perfectly mirror the president they seek to restrain.
That is what happened in the third-country deportation case.
Aliens and their activist lawyers learned that the Trump administration was pursuing a new strategy of deporting removable aliens to countries unrelated to the aliens — i.e., countries the alien did not ask to be sent to, and that were not the countries of which the aliens were nationals or from which they traveled to the United States. Some of those countries are objectively unstable and dangerous (e.g., South Sudan), and some were allegedly dangerous for particular aliens (e.g., one alien, a gay man who legitimately feared persecution in Guatemala, was deported to Mexico, which promptly extradited him to Guatemala).
Lawyers for the removable aliens filed suit before Judge Brian Murphy, a Biden appointee to the federal district court in Massachusetts. Murphy issued an order enjoining the Trump administration from deporting removable aliens to third countries before providing them with 15 days’ notice of the country to which the alien was to be deported — thus enabling the removable aliens to consider whether to file claims that they feared persecution, or feared being subjected to torture or inhuman treatment under the Convention against Torture (which the U.S. ratified during the Clinton era).
This may sound reasonable, but Judge Murphy had no legal authority to decree such a provision. His order is nothing more than a usurpation of legislative power under the guise of due process.
Deporting removable aliens to countries to which they’d prefer not to be sent is not a Trump-administration innovation. Congress unambiguously prescribed it in immigration law. As set forth in Section 1231(b) (of Title 8, U.S. Code), the government may remove an alien to any country willing to accept him if it is “impracticable, inadvisable, or impossible” to send the alien to one of the following: the country to which he’d prefer to be sent, the country from which he came, the country of which he is a national, the country where he was born, or a country where he has a residence.
This may seem unfair to the alien. But whose fault is that? We are talking about aliens who came to our country in violation of our laws. No one asked them to come, and they did so knowing the risks of entering, living, and working illegally in a country that is not their own. It is absurd to suggest that, for being so undesirable that other countries are reluctant to accept them, such removable aliens should be rewarded with residence in the United States.
Our government is not a free-services travel agency for foreign trespassers. Our system is generous in giving aliens who violate our laws some say in the matter: Our law directs that the executive, first, try to accommodate the reasonable requests of removable aliens, but then, otherwise, deport them to countries to which they have ties. But that is not always possible. When it’s not possible, Congress — which represents the American people, not the world — must accord more weight to the interests of Americans than those of non-Americans. It is not in our interest to encourage more aliens to enter our country illegally by rewarding their lawlessness with residency.
In any event, lawfully deporting removable aliens to countries they do not prefer is less objectionable than their illegal entry into our country against our preferences. The illegal aliens should bear the burden of a problem of their own making.
Within reason, of course. Even though it is the aliens, not we, who have caused the problem, our laws protect them from deportation to countries in which they’d face a credible threat of persecution or torture. But those are political determinations, involving diplomatic negotiations with implications for Americans who travel overseas. They are not justiciable issues. Not to belabor a point I’ve made a number of times, in Munaf v. Geren (2008), a unanimous opinion authored by Chief Justice John Roberts, the Supreme Court held that the determination of whether a person is likely to be tortured in a foreign country is for the political branches, not the judiciary, to make.
Now, it’s fair to contend that there are flaws in our removal law that the Trump administration is exploiting in objectionable ways.
On the whole, since we are dealing with people who have no right to be in the United States in the first place, it is a good thing that their cases are prevented from clogging our courts and inviting progressive judges to freelance-legislate. It makes sense that all challenges to removal should be adjudicated in one streamlined judicial proceeding before a three-judge circuit court panel. Moreover, most cases will never reach that stage of review; instead, the alien will be unremarkably deported right after being apprehended or found removable by the Justice Department’s immigration tribunals.
But there are some cases in which it is not clear, at the removal-hearing stage, to which country the alien might be removed. In theory, the Trump Justice Department is right to posit that, if there are particular countries to which aliens object to removal, the burden should be on them to specify those countries at the hearing stage. But should an illegal alien from, for example, Central America, really be expected to anticipate that the United States might send him to, say, Libya, South Sudan, or Indonesia? Should the government, upon obtaining a removal order, be able to orchestrate such a deportation, with little or no prior notice, because the alien didn’t think at the removal-hearing stage to object to being sent to a strange country to which he has no attachment and had no inkling he’d be sent?
That is the envelope the Trump administration is now pushing. It is basically saying: In our custody are removable aliens, many of them criminals, who are unwelcome in the countries that know them best; once they’ve been given due process and ordered removed, we should be able to send them summarily to whatever country will accept them — rather than release them into our country or detain them here at great public expense.
This hasn’t been a hotly disputed issue until now. Prior to Trump II, if countries to which removable aliens had obvious connections refused to accept them, administrations of both parties tended to resign themselves to keep them. (For example, as we’ve detailed, the Trump I administration released Kilmar Abrego Garcia to live and work in Maryland because a fear-of-persecution order barred his removal to his native El Salvador and the administration failed to persuade any other country to accept him.) Now, however, the Trump administration is taking a different tack, in effect saying: The law authorizes us to send removable aliens to third countries over their objection, and that’s what we’re going to do — satisfied by the assurances we’ve gotten from those countries that the aliens will not be persecuted or tortured.
Like it or not, this is consistent with immigration law. Should we be uncomfortable with it? Sure: While I don’t believe illegal aliens should be able to dictate the terms of their deportation, I’d also prefer that our government not send them to, for example, war zones, or countries where they’re apt to be arbitrarily detained, or sharia-supremacist countries that systematically discriminate against women and non-Muslims.
Still, if such concerns are to be addressed, it is for Congress, not the courts, to address them.
Congress could, for example, enact a list of countries to which aliens — if they have no ties to these countries (and sometimes even if they do) — may not be deported, at least in the absence of credible assurances against mistreatment, and the list could be periodically revised. Or Congress could direct the executive branch — which has direct diplomatic dealings with foreign governments — to develop and periodically revise such a list. Or Congress could even enact a law along the lines of what Judge Murphy ordered — directing the executive branch to give a removable alien sufficient advance notice of removal to a third country that the alien has a reasonable opportunity to claim fear of persecution or torture. Or, though this may be impractical, Congress could require that aliens be told at the removal hearing stage that it’s possible they could be deported to any country and that the burden is on them to object to particular countries or be deemed to have waived any objection. (I suspect this would lead immigration activists to devise a list of notorious countries that would be submitted in all cases; the result could be a vast waste of time since, in the great run of cases, the government is not going to send removable aliens to objectionable third countries.)
It’s not enough to say Judge Murphy had no authority to prescribe new procedural rules for the deportation of removable aliens to third countries. Murphy had no business intervening in removal policy, with Congress having generally divested the district courts of jurisdiction over removal issues. (See Section 1252(f)(1) and (2).)
The Supreme Court was thus right to stay Murphy’s injunction in a curt, one-paragraph order, notwithstanding the 19-page dissent filed by Justice Sonia Sotomayor, joined in by her fellow Obama appointee, Justice Elena Kagan, and the Court’s Biden appointee, Justice Ketanji Brown Jackson.
As usual, the Trump policy is provocative, and there are significant questions about whether the administration should have commenced deportations in violation of Murphy’s order, even if the administration believed (correctly in my view) that Murphy had overstepped his authority. That said, it is not for the judiciary to rewrite removal law. That’s Congress’s job.