Dem
47
GOP
53
Over the weekend, noting that the Trump administration had backed down on its program of trying to deport many foreign exchange students, we speculated that the White House was responding to the grim polling numbers, which have Trump under water on immigration, despite that being his signature (and strongest) issue. We imagined this might be motivating the administration to tone down its most extreme deportation plans.
Maybe were wrong about that. Over the weekend came the alarming news that immigration officials have deported as many as three U.S. citizen children, one of whom has stage 4 cancer and needs access to critical treatment and medication. All of them were with their mothers, who had appeared for routine immigration check-ins, when they were arrested and immediately prepped for deportation. They were denied access to counsel and denied the ability to place their children with other family members or guardians so the children could remain in the U.S.
On April 25, a federal judge in Louisiana, U.S. District Judge Terry Doughty, ordered the Trump administration to appear on May 16 "in the interest of dispelling our strong suspicion that the government just deported a U.S. citizen with no meaningful process." The government had put one of the women, and her two children, ages 2 and 11, on a plane even while they were trying to get into court. The father tried to ensure that his citizen daughter was not also deported; instead, ICE threatened to deport him, too. Doughty even tried to reach the woman by phone during the flight only to be told by ICE that she had already been released in Honduras. It is clear that Trump officials are going to great lengths to prevent their targets from exercising any of their due process rights. In this environment, U.S. citizens will inevitably also be picked up and shipped out.
To be sure, this is not the first time U.S. citizens have been deported in an administration's rush to kick as many people out of the country as quickly as possible. Under George W. Bush, deportations escalated rapidly and many U.S. citizens were caught in the dragnet. The raids continued under Barack Obama and so did the mistakes. In fact, a Northwestern University professor reviewed 8,000 cases and determined that 1% involved U.S. citizens. One of the most egregious examples is one cited by Judge Doughty in his order, wherein the government deported a mentally disabled U.S. citizen to Mexico despite clear evidence that he was born in North Carolina. In that case, Lyttle v. United States, he sued not only the U.S. but also the individual ICE agents who had violated his rights—and he won. Doughty cited this case, which held that "Any ICE officer with this responsibility would know it is illegal and unconstitutional to deport, detain for deportation, or recommend deportation of a U.S. citizen." The ICE agents' knowledge of their illegal conduct is critical here because that is the test for qualified immunity. In Lyttle, the Court found that the agents' actions in light of the clear constitutional rights involved meant that they were not entitled to qualified immunity and could be held liable for violations of the Fourth and Fifth amendments.
This is going to be important here because not only are Trump administration officials condoning this conduct, despite court orders requiring due process, and other legal constraints up to and including the text of the Constitution, they are instructing agents to violate the law. Attorney General Pam Bondi issued a memo on March 14 telling ICE agents that they can ignore the Constitution when it's inconvenient to follow it. She is explicitly greenlighting breaking into people's homes without a warrant if federal agents suspect a gang member is inside. The memo tells agents: "Given the dynamic nature of enforcement operations, officers in the field are authorized to apprehend aliens upon a reasonable belief that the alien meets all four requirements to be validated as an Alien Enemy. This authority includes entering an Alien Enemy's residence to make an AEA apprehension where circumstances render it impracticable to first obtain a signed Notice and Warrant of Apprehension and Removal." The memo goes on to say that the agent's determination that a person is an "alien enemy" is not reviewable by a court. Yes, that's right. Bondi decided that an ICE agent is judge, jury and executioner—due process is so 20th century.
Despite the Supreme Court's clear directive that due process is very much alive and well and applies to everyone, this memo has not been rescinded. And based on these most recent cases, it seems it's still in full force and effect. But agents who are carrying out these unlawful orders should be aware that they can be held personally liable for violations of the Fourth and Fifth amendments. The Bivens case established that individual federal agents can be sued directly under the Constitution if Congress hasn't acted to provide another remedy. And as explained above, it's unlikely these ICE officers would be entitled to qualified immunity given the deliberate and egregious nature of the violations. The United States government can also be sued under the Federal Tort Claims Act for torts committed by people working on behalf of the U.S. In fact, SCOTUS is hearing oral arguments on Tuesday in a case under the FTCA brought by a Georgia couple whose home was raided by the FBI by mistake—the actual house for which the FBI had a warrant was a few blocks away but the agents didn't bother to confirm they were at the right address, like by looking at the number on the outside of the house. These screwups by the government in such high-profile fashion, along with its deliberate disregard for anyone's rights and refusal to change course or correct actions they admit were mistakes, will only confirm the public's perception that these people have no idea what they are doing, they are corrupt and dangerous, and that people are getting hurt and will continue to get hurt as long as they are in power. Look for those poll numbers to keep plummeting. (L)