Re-posted from www.andyworthington.co.uk
Trump’s target, to follow the logic of his promise, were those amongst the eleven million undocumented migrants in the US, according to estimates published by the Office of Homeland Security Statistics in April 2024, who had been convicted of crimes, which was a fraction of the total (just 4%).
According to Patrick J. Lechleitner, the acting director of ICE (Immigration and Customs Enforcement), in a letter to Congress on September 25, 2024, the total number of noncitizens with criminal convictions was, at the time, 435,719, although it’s important to note that a breakdown of the crimes committed demonstrated a wide spectrum from the most minor of offences through to much more significant crimes.
The most prevalent offences were traffic offences (78,164), while immigration-related offences accounted for another 52,880. Also prevalent were drug-related offences (57,885), and, in categories involving violence, 64,579 convictions for assault. There were also 13,376 convictions for homicide, 18,564 for larceny, 14,666 for burglary, 10,316 for robbery. There were also 13,876 offences involving weapons, 16,320 incidences of sexual assault, 9,907 other sex offences, and 16,275 cases involving fraud.
In reality, however, Trump’s target wasn’t the 4% of the eleven million undocumented migrants convicted of crimes; it was — and still is — all of them.
Mention immigration to a hardcore MAGA supporter, and they’ll tell you reflexively, and probably with both anger and conviction, that crossing into the US illegally is a crime, and that therefore everyone who does so deserves to be deported.
This hardline approach — typical of the hysteria that has replaced all nuanced political discourse, and which is aggressively promoted by the Trump administration itself — completely ignores an uncomfortable but essential truth: that the immigration policies of major economies in the west are caught in an uneasy and irreconcilable conflict between, on the one hand, a need for immigrants to undertake necessary jobs, and, on the other hand, a drive to stem what might otherwise be uncontrolled immigration; in the case, of the US, particularly from Central and South America, where, ironically, the economies of many countries have been specifically undermined for decades by US corporate exploitation and regime change wars.
The aging countries of the west desperately need immigrants to look after them, and also to work in agriculture, in the construction industry, and in all manner of badly-paid retail and service sector jobs, which US citizens themselves are unwilling or unable to do.
Focusing solely on the prevention of immigration is, therefore, socially and economically counter-productive, although for those within the administration for whom racism and hysteria seem to know no bounds — Trump himself, his repulsive Nazi homeland security advisor Stephen Miller, the cruel Kristi Noem, director of the Department of Homeland Security, the shrill White House press secretary Karoline Leavitt and the unaccountable Border Czar Tom Homan — all of this is irrelevant.
From Trump’s first day, when he issued a toxic river of deranged executive orders and “proclamations” declaring that the US was at “war” with migrants who constituted an “invasion”, and that there was a “national emergency” on the southern border, Trump and his would-be killers and harpies have relentlessly sought to portray everyone rounded up by ICE and marked for deportation as, to cite just three examples, “heinous monsters”, “violent criminal illegal aliens”, and terrorists who “rape, maim and murder for sport.”
The Trump administration’s hysteria dissolves on contact with reality
From the beginning, however, the deranged rhetoric has dissolved on contact with reality. When Trump decided to send migrants to Guantánamo from ICE facilities on the US mainland, and Kristi Noem posted photos of men described as “criminal aliens” and the “worst of the worst”, who were all allegedly part of the Tren de Aragua gang, relatives immediately contacted mainstream media reporters to expose those claims as lies.
made available by the Department of Homeland Security.
178 Venezuelans were sent to Guantánamo in February, before being suddenly repatriated, and reporters eventually established that, even according to the DHS, 51 had no criminal records whatsoever. DHS also claimed that 80 of the men were members of Tren de Aragua, but Venezuela’s Interior Minister Diosdado Cabello denied that when the men came back, stating, after screening the first arrivals, “We checked the first group that were said to be from Tren de Aragua and there was no one from Tren de Aragua, not one.”
As thoroughly credible stories of car mechanics and barbers, construction workers and others in search of nothing more than valid work opportunities percolated through the US media, the Trump administration refused to back down, compounding its contempt for evidence that might contradict its relentless racist hysteria by reaching a deal with El Salvador’s dictator, President Nakib Bukele, whereby, in exchange for $6 million of US taxpayers’ money, he would take another 238 Venezuelans — again, all alleged Tren de Aragua gang members — to be held in his notorious CECOT prison, a mega-Guantánamo for alleged terrorists that is a globally-reviled black hole for human rights.
Again, credible stories of wrongly detained footballers, gay makeup artists, aspiring musicians and bakers emerged to thoroughly debunk the administration’s fact-free hysteria.
In another case, that of Kilmar Armando Abrego Garcia, one of 23 Salvadorians sent to CECOT with the Venezuelans, the administration was obliged to admit that it had made an “administrative error” in sending him to CECOT, as he had a form of legally mandated protection known as “withholding of removal.”
Unwilling to back down again, however, the administration lashed out like a spoilt and malignant child, only eventually rectifying its mistake by bringing him back to the US after a court order, but cruelly and petulantly building up a risible and ongoing criminal case against him to supposedly demonstrate that he should have been eligible for deportation in the first place.
While no further deportations to CECOT have taken place in recent months — partly because of court challenges, but also, I suspect, because Bukele has been embarrassed by his US partners’ incompetence — the administration retains a particular and frankly malevolent enthusiasm for deporting migrants not to their home countries but to third countries, despite evident and justifiable alarm that doing so shreds the US’s responsibility for upholding the Torture Convention, which prohibits anyone being sent to another country if they face perilous and uncertain conditions that may include torture or even death.
Locating and using convicted criminals to justify unacceptable deportations to South Sudan
After chaotically sending migrants from a variety of countries to Panama and Costa Rica in February, and also paying Rwanda $100,000 to accept an Iraqi refugee and alleged former ISIS member in March, the administration, evidently recognizing the negative PR impact of repeatedly describing migrants as “heinous monsters” without any evidence, located eight men with verifiable criminal records, perhaps already taking advantage of databases developed by the monstrous surveillance-and-control company Palantir, and decided to deport them to South Sudan.
War-wracked and dangerous, South Sudan was the eighth country to date to agree to accept deported migrants who are not their own citizens, as I discussed in a recent article, and as the New York Times revealed in a commendable piece of investigative journalism last month, establishing that the Trump administration has a list of 58 countries worldwide that it wants to take in migrants who are not their own citizens, and that it has so far held discussions with 29 of them.
In an Associated Press profile in May of the eight men, only one of whom was from South Sudan, the most prominent of the eight was Thongxay Nilakout, from Laos, who had served 29 years in prison for the murder in 1994 of Gisela Pfleger, a German tourist, on the outskirts of Los Angeles, when he was just 17 years old. Although he received a life sentence, he was released in 2023 “after his case was reviewed following a US Supreme Court ruling that said mandatory life sentences for minors were unconstitutional.”
Two others, both convicted of sexual crimes, were from Myanmar, and another was a Vietnamese man, “convicted of first-degree murder and second-degree assault and sentenced to 22 years in prison.” Two others were Cuban, one who had “served 15 years in a state prison after being convicted of robbery, kidnapping and falsely impersonating an officer in 2007”, and the other convicted of numerous crimes, including arson, drug trafficking and attempted first-degree murder.
There was also a Mexican, who had been “convicted of second-degree murder and sentenced to life in prison”, while the man from South Sudan was “convicted in 2013 of robbery, for which he was sentenced to 8 to 14 years in prison; and of possession of a deadly weapon by a prohibited person, for which he was sentenced to 6 to 10 years”, although he was “released on ‘discretionary parole’ on May 2 and arrested by immigration authorities six days later.”
The first question that should have been asked was why these men weren’t sent back to their home countries. In most cases, the AP established that immigration judges had ordered their repatriation after or during their sentences, and that they had waived appeal, and yet it was only in the case of the Mexican, Jesus Munoz-Gutierrez, that the AP’s journalist, Adriana Gomez Licon, noted, “It was unclear why he would be flown to South Sudan or beyond when Mexico is just south of the United States.”
The second question — which was addressed, by Boston-based District Judge Brian Murphy — concerns the fundamental illegality of sending anyone to a third country without any kind of review to establish whether or not they will be safe. The principle of non-refoulement (not deporting any person to any country in which their “life or freedom would be threatened”) is enshrined in the 1951 Refugee Convention, and also included in the 1984 Torture Convention, and it is also enshrined in US law.
Judge Murphy and the courts’ struggles to restrain executive overreach
On March 28, Judge Murphy issued a Temporary Restraining Order, on behalf of a class of noncitizens with final removal orders, preventing the government from “removing” anyone with a final order of removal “from the United States to a third country, i.e., a country other than the country designated for removal in immigration proceedings, UNLESS and UNTIL Defendants provide [them] with written notice of the third country to where they may be removed, and UNTIL Defendants provide a meaningful opportunity for [them] to submit an application for protection, including withholding of removal under 8 U.S.C. § 1231(b)(3) [a “restriction on removal to a country where [the] alien’s life or freedom would be threatened”] and protection under the Convention Against Torture (CAT) to the immigration court, and if any such application is filed, UNTIL [they] receive a final agency decision on any such application.”
The administration deliberately flouted Judge Murphy’s order just three days later, sending four Venezuelans to the CECOT prison from Guantánamo, and on May 7 Judge Murphy responded to another potential violation when reports emerged that a group of “Laotian, Vietnamese, and Philippine class members” was “being prepared for removal to Libya, a county notorious for its human rights violations, especially with respect to migrant residents.”
On May 20, Judge Murphy was required to intervene again when it became apparent that plans were in place to send individuals to South Sudan. The day after, however, he discovered that the government had violated his preliminary injunction, and had flown the eight men out of the US, holding them on the US military base in Djibouti, where they and their 13 ICE handlers endured arduous conditions in a shipping container as the Trump administration tried to prevail in its efforts to complete their deportation to South Sudan.
Judge Murphy was obliged to clarify that all removals to third countries “must be preceded by written notice to both the non-citizen and the non-citizen’s counsel in a language the non-citizen can understand”, and that, “Following notice, the individual must be given a meaningful opportunity, and a minimum of ten days, to raise a fear-based claim for CAT protection prior to removal.”
He added, “If the non-citizen demonstrates ‘reasonable fear’ of removal to the third country, Defendants must move to reopen the non-citizen’s immigration proceedings. If the non-citizen is not found to have demonstrated a ‘reasonable fear’ of removal to the third country, Defendants must provide a meaningful opportunity, and a minimum of fifteen days, for the non-citizen to seek reopening of their immigration proceedings.”
He then issued a separate order to remedy the violation of the preliminary injunction, which required giving the men a reasonable fear of torture interview including access to counsel, an interpreter, and technology for transfer of documents “commensurate with the access that they would have received had these procedures occurred within the United States prior to their deportation.”
On May 26, Judge Murphy rejected an effort by DHS to undo his ruling that the government had unlawfully deported the men, and had failed to give them an opportunity to seek protection from torture. In a memorable passage, he stated, “To be clear, the Court recognizes that the class members at issue here have criminal histories. But that does not change due process.” He quoted from two cases from the 1940s and ‘50s — “The history of American freedom is, in no small measure, the history of procedure” and “It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law” — and explained, “The Court treats its obligation to these principles with the seriousness that anyone committed to the rule of law should understand.”
Shamefully, on July 3, the Supreme Court, by seven votes to two, lifted the injunction through some complicated and inadequate reasoning, allowing the administration to finally fulfil their wretched dream of sending the eight men to South Sudan, which the Department of Homeland Security trumpeted in a typically overblown press release, entitled, “8 Barbaric Criminal Illegal Aliens Finally Deported to South Sudan After Weeks of Delays by Activist Judges.”
In the Supreme Court, meanwhile, the majority ruling was thoroughly condemned in a memorable dissent by Justice Sonia Sotomayor, who stated, “The United States may not deport noncitizens to a country where they are likely to be tortured or killed. International and domestic law guarantee that basic human right. In this case, the Government seeks to nullify it by deporting noncitizens to potentially dangerous countries without notice or the opportunity to assert a fear of torture.”
As she added, “What the Government wants to do, concretely, is send the eight noncitizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death.”
Another powerful criticism came from Birte Pfleger, a college professor and the daughter of Gisele Pflger, murdered by Thongxay Nilakout. In a court submission, she stated that, when she heard about his planned deportation to South Sudan, “my immediate emotion was not relief or some kind of gleefulness in learning that the man who had caused irreparable harm, unfathomable pain and permanent grief and sadness to my family had been deported unlawfully.” Instead, she said, although she recognized that Nilakout and the seven other men had been “ordered removed from the US after a lengthy legal process”, she noted that the law is “very clear that when the country of citizenship does not accept the deportee, the US cannot confine the migrant indefinitely and, at least until now, migrants can only be deported to a third country with proper notice and a realistic opportunity to object.”
As she proceeded to explain, “So why do I care ? Do I care if the man who murdered my mother dies as a result of violence or famine? No, not really. However, when the federal government as the enforcer of ‘We the people’ violates the law, none of us is safe. If we consent to ignore the fundamental rights of some people, because we deem them unworthy of these rights, then who is to say these rights will apply to us and who decides when and for whom rights apply? Justice must be principled , or it is not justice for all. If ICE and Homeland Security can willfully ignore or blatantly disregard federal court rulings, will those courts have any power to enforce other laws?”
She ended her submission by noting that, as would have been both appropriate and legal, Nilakout should have been allowed to return to Laos.
While Birte Pfleger’s submission and Justice Sotomayor’s dissent (in which she was joined by Justice Ketanji Brown Jackson) were ringing endorsements of the desperately important protections against deportations to torture, the truly alarming truth about the Trump administration’s attitude to this hugely important barrier to the wanton deportation of anyone anywhere where they might be tortured or killed is that it is widely regarded as a cumbersome and unnecessary obstacle to a much more primitive notion of justice.
The Trump administration seeks to bypass prohibitions on sending anyone to a third country where they may face torture or even death
The crux of this is the question I asked above — why these eight men weren’t sent back to their home countries — and the blunt and dangerous position taken by the administration is that, as NPR described it in an article on June 1, “The administration argues that the men’s home countries won’t take them — and people with criminal records shouldn’t be allowed to stay in the US.”
Another take was offered by the New York Times on July 13, when court reporter Mattathias Schwartz suggested that “ICE has long reported difficulty in getting countries to accept their own nationals, because of a lack of diplomatic relations, an inability to get travel documents quickly enough, or, in some cases, because the migrants had been convicted of crimes. Migrants from these countries have been detained for long periods of time or released into the United States.”
During a press conference when the South Sudan flight was underway, ICE’s Acting Director Todd Lyons captured the essence of the administration’s dangerous approach. “As a career ICE officer, I’ve been dealing with these recalcitrant countries for years, having to see repeated murderers, sex offenders, violent criminals re-released back into the United States because their home countries would not take them back”, he said, adding, “We are now able to remove these public safety threats so they won’t prey on the community anymore and they won’t have any more victims in the United States.”
This approach makes sense to the hardliners of Trump’s government, and their equally hardline supporters, but in practice, of course, it is fundamentally endorsing a situation in which, if a home country won’t take an ex-prisoner back, officials are claiming that they’re justified in simply getting rid of them elsewhere without any safeguards whatsoever.
Aware of potential pushback, ICE officials last week issued new internal guidance that, as the Times described it rather lackadaisically, “could help accelerate third-country deportations.” According to the guidance, “when a country has provided ‘credible diplomatic assurances’ that deportees will not be subjected to torture or persecution, deportations can proceed without delay.”
The Times added that, “When the United States has not received those guarantees, the guidance calls for ICE to inform migrants that they are being sent to a specific country. But it does not require the agency to ask if the migrant fears deportation to that country. The new agency rules appear to allow deportations in as few as six hours, provided the migrant does not raise objections beforehand.”
For anyone with experience of Guantánamo, the phrase “credible diplomatic assurances” is almost entirely meaningless, as it was used to allegedly protect men resettled from Guantánamo in third countries when they couldn’t be repatriated, which were revealed as thoroughly inadequate in a detailed and damning report in June 2023 by Fionnuala Ní Aoláin, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
She noted that, despite “diplomatic assurances”, the “vast majority of detainees” experienced “sustained human rights violations beginning with the very process of transfer to the country of return or resettlement”, called on the US government “to refrain from seeking or relying upon diplomatic assurances ‘where there are substantial grounds to believe that [a person] would be in danger of being subject to torture’”, and insisted that “diplomatic assurances must be capable of reliance, and should … include binding elements for organs or agents of the State responsible for their implementation that eliminate risk and safeguard whether the assurance will in fact be complied with.” As she added, “It is essential that assurances contain unequivocal guarantees that the person is free from danger, and that clear long-lasting procedures are established for effective monitoring and access to an effective remedy in the case of non-compliance.”
Not only is there no reason to suppose that the Trump administration has any intention of following up on whether or not “diplomatic assurances” are being adhered to, the fact that plans are also being made for deportations to third countries without any assurances whatsoever ought to set off significant alarm bells.
In addition, as Matt Adams, the legal director at the Northwest Immigrant Rights Project, which is one of the groups suing the administration over the flight to South Sudan and deportations to other third countries, told NPR, what is also being overlooked is that the men facing deportation have already paid their debt to society for their crimes. As he asked, “Is it okay for the government to turn around and destroy their lives and the lives of their families, just because those individuals at one time committed a crime for which they’ve already been convicted, [and] they’ve already served their sentence?”
Another angle was provided by Ngoc Phan, the wife of Tuan Thanh Phan, who had served nearly 25 years in prison for first-degree murder and second-degree assault in 2000. They had expected that, when his sentence ended, he would be deported to Vietnam, and Ngoc was making preparations, but on March 3, as he left prison, ICE agents picked him up and immediately put him into deportation proceedings, sending him to South Sudan after first telling him and the seven other men that they would be sent to South Africa.
Ngoc Phan’s experience suggests that another aspect of the Trump administration’s approach to their country deportations may simply involve lying — pretending that ex-prisoners’ home countries won’t take them back, because, and I say this very deliberately, senior Trump officials are desperately unpleasant individuals, who delight in the cruelty of discarding migrants in third countries, where they would no doubt be happy to hear that they have subsequently disappeared or died.
On July 8, a number of UN Special Rapporteurs warned the US government against implementing its third country deportation policies, stating, “To protect people from torture and other prohibited cruel, inhuman or degrading treatment or punishment, enforced disappearances, and risks to life, they must be given an opportunity to express their objections to removal in a legally supervised procedure. The US’s expedited removal procedure could allow people to be taken to a country other than their own in as little as a single day, without an immigration court hearing or other appearance before a judge.”
The experts added, “International law is clear that no one shall be sent anywhere where there are substantial grounds for believing that the person would be in danger of being subjected to serious human rights violations such as torture, enforced disappearance or arbitrary deprivation of life. That assessment must be individual as well as country-specific.”
The experts’ alarm was clearly justified when Tom Homan, Trump’s Border Czar, breezily told Politico in an interview that, as the Times described it, “he did not know if the eight men were still being detained in South Sudan, or where they would ultimately wind up.”
“There’s like a hundred different endings to this,” he said. “I do not know.”
An uncertain fate for migrants held at Guantánamo and Kilmar Armando Abrego Garcia, and new deportations to Eswatini
As I explained in an article last week, the alarming South Sudan deportations, which could be seen as a form of “extraordinary rendition”, are unlikely to be confined to just those eight men, with the next targets, quite possibly, already at Guantánamo. In recent weeks, migrants from 26 different countries, including the UK, have seen sent to Guantánamo, with the DHS publishing a list of 26 of the 72 migrants currently held, naming them and claiming that they have all been convicted of serious crimes.
No one seems interested in picking up on this story and investigating it further, even though it is startlingly clear to me that any day now they could also find themselves deported to some far-flung unsafe third country, when, as with Tuan Thanh Phan, many of them could surely be sent back instead to their home countries, which, as well as the UK, include Romania, China, India, Vietnam, Colombia, El Salvador, Guatemala, Honduras, Venezuela, Jamaica and Liberia.
And in fact, just yesterday, five more migrants — from Vietnam, Jamaica, Laos, Cuba and Yemen, and all, allegedly, with criminal convictions — were deported to Eswatini, formerly known as Swaziland, a tiny, land-locked kingdom in southern Africa, where their fate is as uncertain as that of the eight men sent to South Sudan last week.
The men’s identities have not yet been revealed, although photos of them, and lists of their alleged convictions, were posted on X by Tricia McLaughlin, the hysterical Assistant Secretary of the Department of Homeland Security, who claimed —in an assertion whose veracity has not yet been tested — that they were all “so uniquely barbaric that their home countries refused to take them back.”
In a statement, Thabile Mdluli, a spokesperson for the Eswatini government, said that the deportations were “the result of months of robust high-level engagements”, adding, as Al Jazeera described it, that the men were being “housed in Correctional facilities within isolated units, ‘where similar offenders are kept.’” Rather undermining the claims made by Tricia McLaughlin, Mdluli also stated that Eswatini would work with the International Organization for Migration (IOM) “to facilitate the transit of the inmates to their countries of origin.”
It is, however, impossible to know whether that will prove feasible, what kind of timescale is being looked at, or, as with South Sudan, what measures, if any, are in place to ensure that the men will not be ill-treated, or, indeed, whether, as with South Sudan and Tom Homan’s lack of interest in the fate of those eight deportees, the Trump administration’s unstated official position is that it has now washed its hands of them, casually plunging another dagger into the heart of its non-refoulement obligations.
Also joining these men, if the Trump administration manages to exert maximum vengeance, will be Kilmar Armando Abrego Garcia. Since being brought back from El Salvador, he has been imprisoned in Tennessee, where he was indicted on the charges of people smuggling that his attorney, Simon Sandoval-Moshenberg, has called “fantastical” and a “kitchen sink” of allegations”, which are “all based on the statements of individuals who are currently either facing prosecution or in federal prison.” As he added, “I want to know what they offered those people.”
The absurd and truly horrific predicament facing Abrego Garcia is that, if a judge in Tennessee orders his release so that he can face the government’s “farcical” charges, Justice Department lawyers have stated that ICE operatives will detain him, leading to fears that, instead of facing a trial, he will be deported for a second time.
In Maryland, Judge Paula Xinis, who is still involved in a case regarding his illegal deportation to El Salvador, has been considering an emergency motion based on what CBS News described as “his lawyers’ fears that he could be deported again, without due process being observed”, based on testimony by an ICE manager that Mexico and South Sudan were “being considered as potential destinations” for the government’s second stab at his deportation.
As CBS news explained, there were “noisy exchanges inside the courthouse” on Friday as Judge Xinis “expressed frustration with prosecutors for what she said was the lack of information about the government’s intentions for Abrego Garcia if he is released in Tennessee.”
“I just want to know what you’re going to do with Mr. Abrego Garcia”, she said pointedly.
The government insisted that they had “no pre-determined plans” for him, although that contention was undermined when prosecutors acknowledged “a plan to transfer him to ICE custody” if he is released this week.
“I’m not here to answer your questions in this case, you’re here to answer mine”, Judge Xinis told prosecutors, adding that they have “destroyed the presumption of regularity. I can’t presume anything is regular in this irregular case.”
The same verdict, shamefully, would seem to apply to pretty much all of the deportations undertaken and planned by this uniquely cruel government, with its sweeping contempt for the law, and its gleeful delight in disposing of as many migrants as they can, as recklessly as possible, with little or no interest in whether or not they actually pose a threat to anyone.
This “war on migrants” is not a “war” at all. It’s a cruel and unforgivable policy of nationwide racism, a blunt instrument of state terror undertaken as an act of ethnic cleansing, and it will hopefully backfire. As a Gallup poll released last week showed, support for allowing law-abiding, tax-paying undocumented immigrants to have a path to citizenship has risen to a record-high of 78%, while only 38% of respondents supported the deportation of all undocumented immigrants, “down from 47% last year when it was a Trump campaign promise.”
Let us hope that decency will prevail.