[rayiner]

If a determination by an immigration judge followed by a BIA appeal isn’t sufficient to deport suspected gang members, how can we enforce our immigration laws at all? Do we need a jury trial with proof beyond a reasonable doubt?

[dragonwriter]

> If a determination by an immigration judge followed by a BIA appeal isn’t sufficient to deport suspected gang members

Kind of a weird question to ask, given that the deportations to El Salvador pretext on the Alien Enemies Act involve none of that, and this specific individual was granted protection from deportation to El Salvador at his immigration hearing in 2019, and the government chose not to appeal.

Note that as well as being in violation of the only decision made by an immigration judge in his individual case, his removal under the Administrations invocation of the Alien Enemies Act also is outside of the authority of invocation of that Act even if one assumes the invocation is valid, as, being invoked on the pretext of an existing war with Venezuela initiated by a Venezuelan invasion of the US (which is preposterous on its face, and the Administration is doing nothing to prosecute the war initiated by this invasion beyond deporting people without due process, demonstrating the lack of seriousness of the claim), it applies only to Venezuelan nationals, and he is Salvadoran.

That said, before being enslaved—and those sent to CECOT are both enslaved and trafficked in the international slave trade—under the 13th Amendment, yes, anyone is entitled to criminal trial.

[rayiner]

This specific alien was not deported under the AEA. And the immigration judge and BIA both found him deportable on the basis of ties to MS13. And they denied his asylum claim.

So the scope of what’s at issue here is compliance with whatever “protection from deportation” might exist where someone has been found to be deportable due to gang ties, and found to lack a valid asylum claim. What possible justification could there be, and are we going to let all the 22 million illegal aliens in the country invoke such third-string justifications?

[SauciestGNU]

Why on earth should people facing extreme legal sanction (deportation) not be entitled to a trial to dispute the claims against them? This is basic rule of law stuff. Currently the admin is trying to deny these people the right to plea their case in front of judges at all.

[xyzzyz]

Let’s say I apply for a tourist visa to US, and I get denied. Am I entitled to a jury trial in US to decide whether I get the visa or not?

Let’s say I do get a tourist visa, get admitted at the border, and the second I cross it, I begin openly violating the terms of the tourist visa. Can the government deport me right there and then, or am I entitled to a full jury trial that decides my deportation?

Finally, let’s say that I violate my tourist visa covertly instead of overtly, so that the government finds out only 3 years later. You seem to be claiming in your comment that at that point, I am certainly entitled to a jury trial. If you answered “no, you’re not entitled to trial” in the previous scenarios, what exactly do you think has changed that makes me entitled to it now?

[SauciestGNU]

As I learned earlier today, time in country is legally relevant in this case. Current law is that someone who has been in the country for over 2 years is entitled to a hearing prior to removal.

To specifically answer your questions, I think it's reasonable that countries can deny visa applications, but I don't think they should be able to do so for behavior that would be legally be protected in the jurisdiction a person is trying to enter. I do not think the US should be able to deny visa applications for speech critical of the US government or Israel.

Once a person is in the country I would absolutely want for a judicial fact finding exercise to determine whether a person has violated the terms of their admittance. I would prefer that process to take the form of a jury trial, but practically speaking I will also accept the opportunity for people to appear before a judge as a workable but less than ideal situation.

For your final situation time in country changes things legally and entitles a person to a hearing before a judge. Ideally this would be a trial. Furthermore, it is repugnant to think that visas can be revoked for nothing but constitutionally protected activities, such as writing opinion pieces for a newspaper. I believe a judiciary not captured by fascists would find that such revocations are a violation of the plain letter of the first amendment and fourteenth amendment, and that the US government should not be able to take adverse actions against anyone for purely expressive activity.

[xyzzyz]

> I don't think they should be able to do so for behavior that would be legally be protected in the jurisdiction a person is trying to enter

This is very much not the current practice. The DS-160 form asks you a bunch of questions about things that are not illegal in US, but will almost certainly result in denial of the visa. Not only that, it asks about your family members, and your answers can and will cause visa denial, even if your family members are not applying for a visa with you. This is good and proper: foreigners have no right to enter our country, and just because something is legal for US citizens doesn’t meant it’s desirable, or that we need to extend this right to noncitizens.

> I do not think the US should be able to deny visa applications for speech critical of the US government or Israel.

How about for being a fan of Hitler, glorifying Holocaust, and advocating for changes in US constitution to allow wholesale genocide of Jews and Muslims? None of this is illegal. You are saying that we should we not be able to keep this freak out of our country, right?

> Once a person is in the country I would absolutely want for a judicial fact finding exercise to determine whether a person has violated the terms of their admittance.

When you enter US through a port of entry, a random CBP employee is fully empowered to deny you entry if he decides you violate the terms of your visa, or some other entry denial reason applies. Importantly, you have no right to judicial review of this denial. You can make an administrative appeal, but you are not entitled in any way to have a judge hear your complaint. You are saying now that the second you get admitted into the country, the same process that was due to you before the entry is now insufficient to adjudicate your rights. I don’t buy it, and neither does the law.

> Furthermore, it is repugnant to think that visas can be revoked for nothing but constitutionally protected activities, such as writing opinion pieces for a newspaper.

Why? You can very much be denied the visa for constitutionally protected activities. Happens all the time, in fact. It would be ridiculous if we could deny entry people who glorify Holocaust, but couldn’t kick them out if we find out they do so only after we let them in. First amendment doesn’t prevent us from denying entry to foreigners based on their speech. This is settled law. If we can refuse their entry, I don’t see why it should prevent us from removing them too.

[SauciestGNU]

I appreciate the thought you put into this response, I'll admit that some of my contentions may be a failure of imagination on my part. I think I lean toward assuming admissibility even for freakishly bad speech, but I'm honestly not sure.

However, much like the legal concept that habeas corpus follows the physical body, once a person is in the United States they should be granted the protections that are granted to all persons within the US and subject to its jurisdiction (I'm using "should" as both normative and descriptive, current actions are in part so controversial because they're violating this principle).

[ty6853]

Because the law isn't based on justice, morality, or ethics. It is merely a system by which power is wielded. You are basing your judgement on a fictional caricature that is not reality. What 'should' happen has zero bearing there. The immigration judges are merely delegates of the AG, and only empowered to the extent the AG allows. It is an administrative action without protection criminal defendants get.

[SauciestGNU]

Believe me I'm well aware of the distinction between Article II administrative law judges and Article III judiciary. It's just bullshit, and SCOTUS is chipping away at the legality of admin law judges wielding sanctions at corportations, but apparently you can abduct individuals and send them to a place where it's likely they'll be tortured and killed and that's no problem.

[rayiner]

People facing deportation have never been entitled to a trial. What you’re describing would be a vast expansion of the procedural requirements for deportation.

Deportation is not an “extreme sanction” if it’s proven that someone is not a U.S. citizen. Non-citizens have no right to remain on U.S. soil except what the government chooses to extend.

[SauciestGNU]

They are in fact currently at least entitled to a hearing to ascertain that they are removable. Absent that, the state could just start snatching anybody and shipping them to CECOT.

[rayiner]

That is in fact not true: https://en.wikipedia.org/wiki/Expedited_removal. Thanks to Bill Clinton, many aliens are removable on an expedited basis if they meet certain criteria.

But this particular person we are talking about got a hearing and a BIA appeal and was found to be deportable. His asylum request claim was denied. What’s perplexing is why the immigration judge didn’t order him deported.

[SauciestGNU]

Thank you for the additional context. However, this individual would not have been eligible for expedited removal as he entered the US in 2011, and the arrest where he was alleged to be a gang member was in 2019. To be eligible for expedited removal a person must have not been present continuously for the previous 2 years. No indication that's the case here.

I suspect the judge would allow a deportation to a country other than El Salvador as soon as the government presented an option of a country willing to accept him. I also suspect few governments in the world would assent to such a transfer.

[ceejayoz]

> Do we need a jury trial with proof beyond a reasonable doubt?

Before sending someone to an overseas slave camp no one has ever been released from? Uh, yes.

[rayiner]

He’s an El Salvadoran citizen being sent to El Salvador. Any grievance he has he can take up with his own country.

[ceejayoz]

> He’s an El Salvadoran citizen being sent to El Salvador…

... in direct violation of an American judge's legal order. Even the White House admits this!

We're just gonna keep glossing over that fact, eh?

[xyzzyz]

You missed the point. Imagine we want to deport a British citizen to Britain for felony fraud committed in US, and it just so happens that the same person is wanted in Britain for a completely different crime, say burglary. We know that if we deport him, he will be jailed and prosecuted in Britain according to British laws. Should this prevent us from deporting him? Is him being considered a criminal in his own country somehow protecting him from deportation there? Are we only allowed to deport non-criminals, and must keep foreign criminals in US, lest they get thrown in jail in the countries we deport them to?

[ceejayoz]

We have long avoided extradition to countries where someone risks torture or death disproportionate to their crimes.

https://www.state.gov/extraditions

> In determining whether a fugitive should be extradited, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. See 22 C.F.R. 95.1 et seq.

Hence the judge’s ruling, and the Administration’s admission of error.

[xyzzyz]

That’s extradition, it’s a completely different process, unrelated to deporting illegal aliens. Moreover, I specifically gave Britain as an example target, and these concerns are not relevant for extraditing to Britain.

[giraffe_lady]

Seems like probably yes! The rest of our legal system overwhelmingly favors errors that let the guilty go free over ones that punish the nonguilty. Due process is not just for citizens.

[ty6853]

Due process here is administrative, not criminal, so the non-citizen isn't entitled to the kind of trial you're thinking he would get were he criminally charged. Due process for an administrative action just means the prescribed process under the law must be followed, which in US immigration means being seen by an executive branch (fake) judge in the immigration kangaroo courts.

[dragonwriter]

> Due process here is administrative, not criminal

While it remains, sadly, Constitutional for the US to enslave people, and the various iterations of statute law abolishing the export slaves first in 1794 and then the slave trade more generally later probably do not bind the operations of the US government only other persons subject to it, the Constitution does require that those enslaved—and those being committed to CECOT are not merely being removed they are being enslaved and trafficked—may only be so enslaved as a punishment for a crime of which they have been duly committed.

So while the actual process in the Alien Enemies Act removals is executive fiat, and the due process under existing law for deportation (which is not afforded in Alien Enemies Act removals) is administrative rather than criminal, the Constitutionally-mandated process for those receiving the sanction being applied in the Alien Enemies Act process is normal criminal process.

[ty6853]

It's an interesting idea, but good luck getting your argument heard. I've been tossed in immigration cell as a US citizen. I filed an FBI records search and there was not even an arrest record or any record of it happening, they just lock you up and that's that without even any process or paperwork. Since it is administrative I did not have the opportunity to talk to a lawyer or even see an immigration judge. They just locked me up and then when they were satisfied with stripping naked and searching me they dumped me on the street.

[giraffe_lady]

Sorry I was using due process in a more lay sense I guess, something along the lines of "the constraints we place on ourselves to limit the risk of accidental harms." None of that will be effective at preventing intentional harms, which is what this is anyway. It wasn't a good word choice on my part I don't think.

[rayiner]

Removal of an illegal alien is not about “guilt” or “non-guilt.” And being expelled from the U.S. when you have no right to be here isn’t a “punishment.”

It’s like civil trespass. You don’t need a trial to kick someone off your property. And when the police remove them, they’re not being punished.

[antifa]

Let me offer you these educational links to give you a shallow introduction to some topics you are completely unfamiliar with:

https://en.m.wikipedia.org/wiki/Due_process

https://en.m.wikipedia.org/wiki/Democracy

https://en.m.wikipedia.org/wiki/Rule_of_law

[giraffe_lady]

Look it's fine let it go. You think this is good because you can't imagine it happening to you or people you care about and I think it's bad because I can. People stripped of citizenship also have "no right to be here" and that's the obvious direction this is heading.

In the many years we've been discussing similar things I've never known you to change your mind on even the smallest point of any subject. I frankly just don't respect you enough to put more energy into this conversation.