The first months of the Trump presidency have been an eye-opening moment for a fractured liberal establishment still in shock at the loss of an election. Reality is setting in by way of executive orders, appointments, firings and an emboldened right: Trump intends to keep many of his horrible promises. Among his terrible policies is the ramping up of the post-9/11 deportation machine that started under Bush, was bolstered under Obama, and is being strengthened even further by this Trump administration. For the last two administrations, undocumented people within the United States have seen increasingly high rates of deportation. During this time people have developed ways of resisting, fighting and sometimes stopping their own deportations. This resistance and what makes it possible will be just as important now as it has been over the last decade. However, the limited tools available to those facing detention and deportation are themselves still under threat and shouldn’t be taken for granted.
In November of 2016 the immigrant rights organization Families For Freedom released a detailed report exposing injustice in the immigrant detention system. The report homed in on one detention center in particular: Gadsden, Alabama’s Etowah Detention Center. Etowah was already ranked one of the worst detention centers in the country due to its poor treatment of detainees, but in addition to this, Families For Freedom in partnership with New York University School of Law discovered that Etowah has been denying detainees their right to petition with the writ of habeas corpus.
Immigration and Customs Enforcement (ICE) officials at Etowah have been engaging in seedy practices by not rightfully acknowledging detainee petitions to invoke their right to habeas corpus. It’s these detainee’s right to challenge their prolonged detainment utilizing habeas corpus as a tool that guarantees everyone the right to do so. Meanwhile, the Northern District of Alabama court system, which handles these cases, has been abdicating its sworn constitutional responsibility to rigorously oversee the imprisonment of people awaiting deportation. This negligent behavior has happened as a result of ignored habeas petitions, one of the only ways for detainees to fight against their prolonged confinement.
Some of the report’s key findings painted a stark picture of what constitutional neglect could look like if such negligence were to spread across the whole of the United States. After six months of being detained, detainees should be able to file habeas petitions constitutionally arguing against prolonged detention if their receiving country has not issued travel documents to accept their deportation. The case Zadvydas v. Davis specified that indefinite detention is only permissible in a few instances, such as if a detainee has a highly contagious disease or if a detainee is a terrorism threat. Otherwise indefinite detention is not in accordance with the law. The Northern District of Alabama has not granted a single habeas corpus petition in over five years, and the only habeas corpus petitions it has formally adjudicated and published opinions for have been denials. While these habeas petitions are supposed to be seen by courts and taken seriously as a means of relieving prolonged detention, the courts in concert with ICE have acted surreptitiously to keep detainees confined.
Further, the report goes on to say “Ultimately, careful review of hundreds of [habeas corpus] petitions raises a multitude of questions about ICE’s behavior in lieu of the Court’s oversight. These are the very questions courts should be asking and would be asking, were they to engage in the truly individualized inquiry with which they are tasked. Every question raised in every case we discuss remains unanswered and leaves hundreds more people vulnerable to indefinite and prolonged detention.”
Truthout spoke to Nnennaya Amuchie, a lawyer and member of the Black Immigration Network, about what attacks on habeas corpus could mean under the Trump administration.
“Trump might further restrict habeas corpus, and with a conservative Supreme Court appointee, who knows which way that will go,” Amuchie said. “Additionally, he has already demonstrated anti-immigrant policies and has advocated for more ‘law and order.'” Amuchie told Truthout that we often overlook how law enforcement has expanded into detention centers and clarified that these facilities often do not have the same protections that others may have. In addition to this, she said his demonstrated attacks on first amendment rights could endanger other fundamental rights such as access to a fair and speedy trial. “Habeas corpus proceedings have been debated heavily since 9/11 and will likely be brought back up under this admin,” she said. “Without this safeguard, people might be detained indefinitely in terrible conditions with no additional legal remedy or legal protections.”
ICE has held immigrants from countries to which they know they cannot deport, even when those detained immigrants provided letters from their Consulate or Embassy stating that travel documents will not be issued. In some cases ICE even released all the immigrants it was detaining from a certain country because they couldn’t secure travel documents, but kept one individual from that country detained. Problems like this in addition to the allegations of fraud raise concerns that the Court in the Northern District of Alabama has a sworn obligation to investigate.
Families For Freedom’s executive director, Abraham Paulos, talked to Truthout about what these revelations mean in the larger context of the US’s place in the world. He described the international aspect of the struggle around deportation as an extension of colonialism. When detainees can no longer be detained here, they are carelessly deported like cargo. Paulos’ words illustrated a country that doesn’t want detainees to have any rights, which is why habeas is of the utmost importance. He avidly described the US as an “imperial power” going to other countries and forcing them to take deportees that they are “done with.”
“They wouldn’t do that with France,” Paulos said. “They wouldn’t do that with Ireland, as many undocumented Irish people as there are here.” Paulos spoke about how countries that make it difficult for the United States to obtain travel documents, which are needed to successfully deport immigrants, could be punished systematically. If their embassies don’t cooperate, he said, the US could threaten to withhold aid or make it harder for their nationals to travel to this country.
“What you have is a situation in which the State Department, or the US imperial power, is basically trying to bully a lot of smaller Black and Brown countries into issuing these travel documents,” he said. Paulos mentioned deportation cases his organization had worked on where people in deportation proceedings had not exhausted all their legal options and the embassies had not yet issued travel documents, but the US State Department stepped in and hurried the process. In some cases, these were invalid documents manipulated by US officials and have not even been for the right destination country.
This all took place under the Obama administration. Although the large-scale resistance we’re currently seeing to Trump’s executive orders is hopeful, Paulos laments the fact it had to get to this point before people “woke up.” “They’ve been at peace while we’ve been at war,” he said about people who are just starting to realize the seriousness of the US’s harmful immigration policies. “Their comfort is at the expense of our mourning.”
Paulos explained that this situation has been building for some time, and that for many people within the political mainstream, policies do not seem worthy of protest until they pose a direct threat to their own life and comfort.
“For the liberals, it’s a question of degrees…. It’s a question of mass incarceration as opposed to all incarceration,” Paulos said. “That is really what we have to have a conversation about. People say it’s the left or the right, but it’s about our center.” With regard to deportation and confinement, he said, “The center for me is no deportation. You move to the left of that, you’re talking open borders. You [move] any degree to the right of that, you believe in deportation.”
Now more than ever, it seems, not compromising will be incredibly important. Pushing for embassies to not issue travel documents to the US is just one way of trying to slow or stop deportation. With the current administration being as confrontationally condescending as it is with Donald Trump at the helm, this strategy could be of some benefit to immigrant defense. That is to say, with reasonable diplomacy potentially being in short supply, other nations might have a new interest in standing up to the US under Trump’s leadership. For activists here and abroad, that might look like asking countries to not accept deportees nor issue the necessary travel documents to deport people.
An immigrant activist affiliated with Families For Freedom and a host of other organizations, Donald Anthonyson, has been doing some of this work already. Anthonyson told Truthout that the work related to his own case as an immigrant with a record who had wondered why his government hadn’t been more proactive in advocating for his rights. He mentioned countries like Gambia, Brazil and Vietnam that have complicated relationships with the US around immigration. “The judicial system says you can’t be punished for the same crime twice. So why punish non-citizens for crimes they committed elsewhere? Double jeopardy is deportation. Triple is when you end up back in a country you’ve abandoned,” Anthonyson said. He told Truthout “No country wants a deportee back, but some are obligated because of US pressure. This is a matter between states at the end of the day.”
Anthonyson made it very clear that understanding how habeas works in concert with state agreements around deportation here is key. Any attempts to expand the detention of undocumented immigrants, travelers, green card holders and so on makes habeas corpus all the more important. Receiving countries can reject deportation arrangements, but those who are detained shouldn’t be held indefinitely or illegally after a certain amount of time. “These are tools that can be utilized if you want to stay and if you want to fight,” he said.
That being said, we should expect habeas corpus to come under attack from the Trump administration, on top of the abuses that were already occurring under Obama. There is no quick and easy way to resist a deportation, but there are strategies that have worked in the past. Habeas corpus is an extremely important right that must be protected.