Trump’s Forced Deportations to El Salvador Prisons, Detentions, and Fear on College Campuses

Jennifer Chacón: Part of what made the United States great, as an initial matter in the ways that it was great, was having an asylum system that was protective and allowing people to claim refuge here when they were the targets of persecution. And having a university system that was open and broadly tolerant to a range of ideas and a range of people from a range of countries. And the administration’s actions really are challenging greatness on both of those fronts.

Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all of our new episodes as soon as they’re available.

On Friday, March 21st, U.S. District Judge James Boasberg heard arguments from the DOJ about whether or not the Trump administration flouted a ruling regarding recent deportation flights of people alleged to be Venezuelan gang members to a prison in El Salvador. Judge Boasberg had blocked the deportation after rejecting the administration’s use of the Alien Enemies Act as a justification. But his orders were apparently ignored by the administration. The hearing, meant to get to the bottom of why, or whether, the judge’s orders were ignored, was contentious, and ultimately left Boasberg and the country with the same questions:  Did the Trump administration deliberately ignore the judge’s order? Is the rule of law in the United States holding?

At the same time, legal immigrants, faculty and students with visas or green cards, seem to be under unusual scrutiny with immigration raids on college campuses that appear to target pro-Palestinian activists who were vocal during the turbulence of the post October 6th [7th] campus surrounding Israel and Gaza.

In today’s discussion, we’re focusing on immigration law and the Trump Administration’s new approach to those issues.  We’re lucky to have with us today, my colleague, Jennifer Chacón. Jennifer’s research focuses on issues that arise at the nexus of immigration law, constitutional law, and criminal law. Her scholarship shines a light on how legal frameworks on immigration and law enforcement shape individual and collective understandings of racial and ethnic identity, citizenship, civic engagement, and social belonging. And she’s the co-author of the immigration law textbook, Immigration Law and Social Justice, now in its second edition and co-author of a book entitled Legal Phantoms, which explores how the past decades shifting immigration policies have shaped, and have been shaped by, immigrant communities and organizations in Southern California.

Welcome, Jennifer. There’s a lot to talk about. So maybe to begin, could you just walk us through how recent events involving the Trump administration are unprecedented and  how much of this is just business as usual?

Jennifer Chacón: Thanks, Rich. It’s really a pleasure to be here and I’m really grateful to have the opportunity to talk about some of these fast-moving events.

So as your question signals,there are lots of things that happen in the world of immigration law that might surprise people, but that are not unprecedented. And then there are ways that this administration is operating that seems to take us into new or unprecedented domain. And so I wanted to distinguish between those two.

So, I’ll start with some of the things that the administration is doing in, including in some of the places that you’ve just talked about, that are unusual, perhaps, or seem problematic, but are not unprecedented. So we’ve seen administrations in the past use the rhetoric of national security to justify the aggressive use of immigration enforcement and immigration detention. We can think back to the period following the attacks on the United States on September 11th, 2001, as a moment when a prior administration did that. We have seen in the past, haphazard transfers of immigrant detainees, including moving people from one jurisdiction that has more favorable law to another jurisdiction that has less favorable law.

That is unfortunately something that is somewhat common in the world of immigration detention, and although some administrations have made gestures to minimizing or regulating these transfers, there’s no law prohibiting it, and it does happen. We have seen in the past, the targeting of non-citizens and including lawful permanent residents for unpopular speech, or on ideological grounds. It’s not new, but it’s important to say here there are legal protections for lawful permanent residents in particular. And we’ll talk a bit more, I think, when we talk about some of the recent cases about what the Trump administration’s doing here, that seems to be pushing some of the legal lines in unusual ways.

The rendition of non-citizens to third countries with no legal process, and outside of the context of a declared war, is new. And it should be of concern to everyone regardless of their stance on immigration. So I think that’s something we should drill down on. Transporting non-citizens who were previously detained on U.S. soil to Guantanamo for detention in the absence of apparent statutory authority is new and something that we should probably drill down on more.

And then the announcement of an executive order that’s explicitly targeting immigration lawyers and others who challenge administration policies is new and really has scary authoritarian dimensions. And we’ve seen other aspects of this with a widely reported assault on law firms and their pro bono activities.

So those things look new and troubling. And finally, the administration’s willingness to act in apparent defiance of court order, as you just described, with the regard to the order of Judge Boasberg to halt the removals of people who were ultimately sent to El Salvador anyway, that too seems like it’s a new legal line that this administration has been willing to cross.

Rich Ford: Okay, so there are many areas in which immigration enforcement has been quite aggressive in the past, but we have several areas in which we’re in uncharted waters. Let’s talk a little bit about the removal of the Venezuelan deportees to foreign countries and how that is a departure from past practice and some of the concerns it raises for you.

Jennifer Chacón: So what we saw was, or what we know from reporting from the Washington Post and other news outlets is that the administration removed about 150 Venezuelan nationals from the United States. The purported basis for this was that the administration said that these individuals were members of transnational gang Tren de Aragua. And they said these people pose a security threat to the United States, a criminal threat to the United States, and therefore they need to be removed. The justification for doing this in a sort of really streamlined way without removal hearings seems to be twofold. One, that the administration seems to be invoking its power under the Alien Enemies Act of 1798. This is a law that allows the president to detain or deport foreign nationals from hostile nations during wartime. It’s only been used three times, always during or relating to an actual declared war. So this would be a very unusual use of that power. Trump is arguing that Tren de Aragua are elements of an invading country, saying that this gang is acting in concert with the foreign nation and invading the country, and he’s invoking the power in that way, against a country and actor with which we are not at war. 

And so he’s using that as one of the justifications for this very strange use of executive authority that does not fit into our typical processes for removing people from the United States. And the second basis that he seems to be using is just broad executive authority under Article II, sort of national security executive power and just saying that, I guess that the laws that we thought constrained processes of deportation don’t necessarily apply where he thinks that national security is an issue. 

So, those are the legal rationale that we’ve been given, and the result has been that about 150 Venezuelans have been taken from the United States and flown to a prison in El Salvador, where conditions appear to be extremely troubling, and this obviously is not the sort of normal process by which people are removed from the United States.

Rich Ford: Okay, so some of this has to do with a redefinition of a wartime act to apply to a situation where there’s no war and where at most, there’s some kind of domestic criminal activity. Another departure seems to be the departure from normal due process. So maybe just walk us through what this should look like, what’s the clearly lawful way to go about dealing with people in the United States who may be a national security threat?

Jennifer Chacón: Yeah, so the processes could look different depending on the legal status of the individual involved. But these are individuals who are on U.S. soil and, at a minimum, are entitled to due process under the Constitution, and there’s a statutory framework for removal. So generally you would have an evidentiary hearing. It would be before an immigration judge, which is not an Article III judge. So it’s an administrative process, but individuals would be allowed to contest the evidence against them and the administration would have some obligation to bring evidence that demonstrated that these individuals are subject to removal.

One of the things that’s striking about the people who have been removed in this case is that it’s come to light that a number of them don’t have any criminal record at all. It’s not clear whether a number of them are members of Tren de Aragua at all. And these are the kinds of questions that it might be important to drill down on in a hearing, but we haven’t had hearings here and, in fact, what we’ve had instead is, in the adjudication before Judge Boasberg, a declaration from ICE’s acting field director Robert Cerna, saying that the absence of criminal records in some of these cases is proof of the dangerousness of these men, because they’re hiding out and will be dangerous at a later time. But this sort of bold assertion that the absence of any proof of wrongdoing is evidence of dangerousness shows just how far we are removed from a factual hearing that makes a determination as to whether an individual is actually removable on any of the grounds that are articulated in the law. 

And so instead we’re just going on the administration’s assertion that these individuals pose some sort of a threat, criminal or national security, and that in the absence of a hearing the administration still has the power to just remove them.

Rich Ford: Really what it boils down to is trust us, these people are dangerous. A kind of Alice in Wonderland argument that, the lack of evidence is proof that they’re more dangerous rather than what we would normally think about a lack of evidence in such cases. So, maybe talk a little bit about the removal of these individuals to a prison in El Salvador. How unprecedented is that? Just leaving aside the procedural problems.

Jennifer Chacón: Yeah, so this too is very unusual I would say, I think, again, we’re outside of the context of any wartime authority and there are procedures in the statute, in some cases, where an individual can be removed to a country that is not their country of nationality. But there is a checklist of processes that have to happen before an individual is removed from a country that is not their country of nationality including some sort of a search for some sort of nexus with that country and none of that has happened in this case. So it’s just a wholesale moving of people to a country where there is no established nexus. 

And that is, I think, one of the other troubling elements of this case. So how long will they be detained there? Under what conditions? What judge, if any, has the authority to review the nature of those conditions? Who can make determinations as to whether these individuals were or were not, in fact, members of the gang that they are alleged to be members of. And all of those questions are just unanswered, given the way that this has rolled out.

Rich Ford: And so it seems that a part of the reason for this is just to allow the Trump administration to do this quickly, that the normal process would be longer and it would require them potentially to get agreement with the Venezuelan government to accept repatriation. And in this case, they didn’t need to do any of that. They could just send them to a country that agreed with the Trump administration?

Jennifer Chacón: Correct.

Rich Ford: Okay. So, there are a few other issues that are related in the sense that they seem to be part of a shift in the way the United States is treating people from other countries, including the treatment of people with Green Cards, so legal immigration status, that have been either deported or detained and sent back home. There was a case of a Georgetown University professor who was not allowed to reenter the country after leaving. And then there was the case of a Columbia University student who’d been involved in protests at Columbia and was detained by ICE agents. Maybe talk a little bit about those, and whether these are unprecedented or is this a case of business as usual.

Jennifer Chacón: Sure. So, I think there are elements of this that are precedented and elements of this that perhaps signal a troubling new set of developments. So, it is true that at various points of foreign policy tensions, people with student visas often become chips on the playing board. And we’ve seen this before, say in the late 1970s when tensions escalated between the United States and Iran. And many foreign nationals who are Iranian and held student visas were subject to heightened scrutiny, many of them removed. So it’s not unusual, necessarily, for student visa holders to undergo scrutiny when they’re escalating foreign policy tensions. So that’s not totally new. The other thing that I think is maybe not totally new, you mentioned that an individual was denied reentry. And we saw during the first Trump administration, the willingness to engage in entry bans, broadly speaking, on nationals from a wide array of countries. So the fact that the president has broad power and that his administration can exercise broad power to keep people from entering the country, including people who had previously entered the country, is not new, although the ideological dimensions of it I think should trouble us. But I think the attacks on lawful permanent residents signals an escalation and some troubling new developments, even over and above the sort of entry ban work that the first Trump administration did.

Lawful permanent residents are … they’ve been called by Hiroshi Motomura, “citizens in waiting.” These are people who are on the road to potential naturalization. They have a host of both constitutional and statutory rights and privileges that attach by virtue of their lawful permanent resident status. And what we saw with the situation of Mahmoud Khalil was a basically targeting of someone who had participated in pro-Palestinian protest on the Columbia University campus and ICE picked him up and put him in detention and was treating him very much like they might treat a student visa holder or someone with a lesser form of protection, when he was in fact a lawful permanent resident with a citizen wife who is eight months pregnant.

And I think that treatment of him and then belatedly justifying that by invoking a provision of the immigration law that allows the deportation of someone that the Secretary of State designates as posing a “potentially serious adverse foreign policy consequence for the United States.”

This is an almost-never invoked provision of the law. So national security is often used to ban entries of people, but it is seldom invoked …the foreign policy rationale here is seldom invoked, almost never invoked, to justify the deportation of lawful permanent residence. So this is a new and troubling willingness to use a very broad, very open-ended and Ill-defined deportation provision to target individuals who have engaged in speech that the administration doesn’t like.

Rich Ford: So one report involving this student was that the agents involved actually didn’t know at first that he was a lawful permanent resident, that they were, in fact, surprised when they found out that this is what they had been or ordered to do.

Jennifer Chacón: That’s right. So I think they were surprised. I think if you look at the Notice to Appear that was served on him, it’s amateurish. It’s not clear what provisions they are relying on as the justification for detaining him and putting him in proceedings. And so there, there’s a lot about this case that is troubling. So as a lawful permanent resident, he’s entitled to a hearing. The government is in a position of having to establish that he is deportable, but the use of detention here is unfortunately something that is not uncommon. People are gen … broadly speaking, people are often detained throughout the pendency of their immigration cases. And you can see the way that immigration detention can be used as a very strong cudgel by an administration that’s trying to encourage people to depart the United States.

Rich Ford: Yeah, so untangling the ways in which existing immigration law actually allows for some pretty aggressive tactics, and the ways in which the Trump administration has gone beyond what has traditionally been done, is tricky and important. It occurred to me in this case that like a lot of what’s come out of this administration, sometimes it’s hard to tell whether the administration is deliberately exceeding its lawful authority or whether they’re just being sloppy and they’re not … or they just do something and figure out whether it’s legal later.

Jennifer Chacón: Yeah. I think we saw that in the notice to appear served on Khalil. I think we also saw it in the way that they’ve responded to Judge   Boasberg’s order on the backend. So Judge Boasberg told the administration that they could not let these Venezuelan nationals leave the country and also said in an oral portion of his order, that if the planes had taken off, that they needed to be turned around. And that didn’t happen. The planes made it to El Salvador and the individuals who were on that plane are still in a Salvadoran in prison. And so there’s been a lot of question about whether this was an overt defiance of Judge  Boasberg’s order, or whether it was more that there was a lack of clarity about Judge  Boasberg’s order. The notion of turning the planes around was given orally, but it wasn’t a written order. So the administration is trying to push back on whether in fact that was part of the order and whether they were not compliant. And then there are also arguments they’re trying to raise about whether the judge had the authority to to impose the order if individuals were already in El Salvador or in international airspace.

So there are ways that they’re trying to suggest that it’s not overt defiance, but in fact legal technicalities. But it’s, in some ways, the fact that they’ve been willing to walk so close to this line and really push the envelope is in itself troubling. It seems like the appropriate way to move through this process would’ve been to comply with Judge  Boasberg’s order and if they felt that Donald Trump had the legal authority to do what he was doing, to raise that claim in appellate litigation, all the way up to the Supreme Court that has six conservative jurors and is presumably a favorable forum for the president. So there were ways to challenge and get to the bottom of the legality of the Boasberg decision without doing what they did, which was play around with and skirt on the edge of noncompliance.

Rich Ford: Right, and presumably, I believe it was the president of El Salvador who said something like, “Oopsie, too late. So it seemed to suggest a strategy of, ask forgiveness, not permission, if you even ask forgiveness. But now it’s a fait accompli. 

Jennifer Chacón: And I do hope that it’s not too late in the sense that if I were kidnapped tomorrow and sent to a Salvadoran prison, I would hope that the U.S. court would recognize that they have the agency to bring me back. And I think this is where again the administration is really pushing some legal lines.

Rich Ford: Jennifer, so one of the other interesting developments that is a little bit of a head scratcher involves people who have been detained trying to enter the United States that don’t seem to fit any of the categories of people Trump would dislike. A German tourist who was detained at the U.S. Mexico border, a Canadian student that was detained at the US Mexico border for a long period of time. An English punk band that was denied entry. What do you make of these cases?

Jennifer Chacón: I think what we see here might be the manifestation of two different things. One is just that the administration has articulated a broadly aggressive stance toward incoming immigrants and has signaled to the agents that enforce immigration law at the borders that they should be aggressive in the way that they’re both screening and detaining people who are seeking to enter the United States.

So I think once that signal is sent from the top, the idea that this would roll down onto people who might seem surprising to us as targets of enforcement is more understandable. When the gloves are off on all fronts, then you’re more likely to see more expansive use of detention and more aggressive questioning and searching and denial of entry at the borders. And I think these are examples and that affects everybody. It’s not going, it’s not gonna be limited to one nationality group, it’s going to be affecting people more broadly. 

And the second thing that may be going on here is that the Trump administration has signaled the plan to shut down the internal watchdog agencies in immigration enforcement agencies. Which again, signals that the cost of error for individual agents is quite low. So if they make a mistake, they detain somebody too long, they violate individuals rights as they’re moving to border, including up to and including presumably the rights of citizens who are moving across the border, the redress for those harms will be harder to obtain and by dismantling and signaling the decision to dismantle these agencies, the administration is saying we will tolerate mistakes on the part of our agents in the field, and in fact encourage mistakes on the part of our agents in the field, in the service of aggressive immigration policies. And so I think we can expect that these sorts of errors and anomalies will increase with time. And it doesn’t mean that there are not still individuals and groups that are more targeted and they’re suffering more as a result of the administration’s policies and practices, but it does show the way that it is not limited to the initial and articulated targets of the administration’s policies.

Rich Ford: Okay. So if it’s just “err on the side of interdiction, err on the side of detention and we’ve got your back, if you make a mistake there’ll be no consequences.” Then we can expect that to affect potentially everybody, although certainly vulnerable groups more than others.

Jennifer Chacón: Definitely.

Rich Ford: Is there anybody left holding the line against that? Who’s pushing back against some of these developments?

Jennifer Chacón: Yeah, so we’ve obviously seen litigation in a lot of these cases, so individual lawyers who are representing people, including some of the people who have been removed to El Salvador. Some of the Venezuelan nationals have lawyers who have been pretty active in speaking with the press and making their clients’ situation known. Organizations like the National Law Center, the ACLU, and others that have taken on pieces of this and are litigating. I think one of the truly disturbing recent responses of the administration has been to issue an executive order that really puts in their sites lawyers who are engaging in advocacy against the administration on these policies, and the executive order, specifically singles out immigration attorneys and attorneys who are litigating in immigration matters.

They essentially accuse immigration lawyers broadly speaking of engaging in fraudulent asylum claims, and suggest that any challenges to the administration will be a basis for scrutiny. And so I think this is worrisome because if we … it’s one thing to have a policy that might push the legal line. That’s usually subject to testing in court and presumably the administration generally would comply with a court order if they crossed the line. But what seems to be happening here instead is that the administration is pushing the line, is pushing the envelope on whether or not they’re complying with court orders and then they are turning around and threatening to focus on attack, investigate individuals who are challenging administration policies that seem to raise questions of legality.

And this is a new frontier. So I think immigration lawyers broadly have been signaled out in these orders. And then we’ve also seen attacks on specific law firms who have had contact with people who have had bad interactions with the President in the past. And in the case of the law firm Paul Weiss with the administration, basically calling out their choices about pro bono, whom to represent pro bono, right? And this, I think is a really troubling new front that the administration has opened up in terms of who they’re targeting and how.

Rich Ford: So they’re trying to chill advocacy that might push back against any of the things that they’re doing. And another example where a similar type of tactic has been used has been directed at universities. I note that just recently, a new executive order actually apparently singles out Chinese nationals, but also attacks more broadly universities that have large numbers of foreign students, suggesting that’s somehow inappropriate. Yeah. Any thoughts about that?

Jennifer Chacón: Yeah, I think one of the reasons that the United States has such a revered university system that is renowned around the world is that it is open and that talented people from all around the world come here both to be educated and to do research. And this a challenge that the Trump administration has thrown down with regard to universities is a really troubling attack on what makes universities in the United States great. And so I think we see there’s a linkage between the sort of closed-borders approach that the President is advocating on the immigration front and the closed borders approach that he seems to want university officials to implement on their own campuses.

So closing the borderers as much as we can to foreign students, foreign nationals who might come and teach and research at our institutions, and then clamping down on individuals, particularly foreign nationals who engage in speech activities that the administration doesn’t favor, which of course, chills campus speech more broadly, not just for foreign nationals, but for everybody who sees that they… their speech is something that the federal government, with all of its military and legal might, is monitoring. And so I think we can see these two, the sort of immigration policy agenda and the policy agenda that’s aimed at disciplining the university system as intertwined.

Rich Ford: Yeah, so a lot of … a common theme here seems to be the attempt to exceed the legal authority that’s enjoyed by the executive branch with tactics that chill or intimidate. And on the one hand, that seems to have been successful with respect to the issues at the border that  it’s deterred people from trying to come to the United States, whether they have valid asylum claims or not, because they’ll be met with greater aggression, but also might have a similar effect in chilling foreign students from coming to American universities. Does…

Jennifer Chacón: Yes.

Rich Ford: And that … that I would, I’ll put the question to you, but to me that seems new as well. That even in administrations that have been fairly aggressive in terms of immigration policy, that kind of chilling effect is not something that I remember in the past.

Jennifer Chacón: I think that’s right. So I think, as I said, I think we’ve seen student visa holders on the frontline sometimes when there are foreign policy struggles, but I don’t think we’ve seen this sort of, direct focus on the universities as institutions, and a direct effort to curb their speech and a direct effort to curb the speech of their members. And to curb the composition of their members in ways that align with the administration’s preferences. So that does strike me as new and troubling. And the other thing I’ll say is, you noted that the administration may be deterring people from coming to the border seeking asylum, and they count this as success. And I suppose if you measure success in terms of the number of people who are arriving at the southern border declining, then it is successful. But I think if you think about that as people who are being persecuted in their country of nationality on the basis of protected characteristics under international law, not feeling like they can come and not feeling like they can lead their countries, then success feels very different.

And I think we should think about what we’re … what are the measures of success? What are the measures of a successful, vibrant country? And part of what made United States great, as an initial matter in the ways that it was great, was having an asylum system that was protective and allowing people to claim refuge here when they were the targets of of persecution, and having a university system that was open and broadly tolerant to a range of ideas and a range of people from a range of countries. And the administration’s actions really are challenging greatness on both of those fronts.

Rich Ford: Yes. That it’s a very different vision of the United States than the one that most of us are used to, where this country would be one of the places that persecuted people could go and one of the countries that would uphold human rights in the face of recalcitrance elsewhere in the world. Any last thoughts about things that we should be on the lookout for in the future?

Jennifer Chacón: Yeah, so I guess two things. One is we have never been perfect at any of the things that we’ve talked about, either universities being broadly inclusive and speech friendly, or having borders that are protective of the most vulnerable populations. But it’s always been a goal and I think it’s one that we should hope to strive toward and hopefully we will. And I guess that’s where I wanted to end, which is just thinking about what is the recourse here? And I think it’s really in the hands of people. I think people need to make their displeasure known to their elected officials when things are not going the way they think they should.

I think it’s sometimes easy to ignore the bad things that happen to non-citizens on the theory that they can’t happen to citizens, but they often do. And so I think it’s important for people to be vigilant about those lines. And I do think, as of now, I still think that we live in a country where our elected officials care about what we think, and it’s really important to make sure that they’re aware of the concerns that we have about the direction that we seem to be heading.

Rich Ford: Thank you very much for joining us, Jennifer.

Jennifer Chacón: Thank you.

Rich Ford: This is Stanford Legal. If you’re enjoying our show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us improve the show and get the word out that we’re back. I’m Rich Ford, along with Pam Karlan. We’ll see you next time.