Deportations at SCOTUS
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Hey folks, Joyce Vance here. Preet Bharara and I are back with a new episode of the Insider Podcast. First, we discuss the Supreme Court ruling that permits the Trump administration to deport immigrants to countries other than their homeland. Then we break down a judge's order releasing pro-Palestinian activist Mahmoud Khalil while his deportation case unfolds. And a separate ruling that ordered the release of Salvadoran national Kilmar Abrego Garcia while he awaits trial.

Plus, a federal appeals court ruling that President Trump can keep control of the National Guard deployed in response to the L.A. protests. And finally, we turn to the Supreme Court's recent decision in U.S. v. Scrimeti upholding a Tennessee ban on gender-affirming care for transgender minors. If you're a member of Cafe Insider, head to the Insider feed or click the link in the show notes of this podcast to hear the full analysis.

Stay tuned, listeners. Stick around for an excerpt from our conversation. Members of Insider help support our work and get access to full episodes and other subscriber benefits. Head to cafe.com slash insider or staytuned.substack.com. Now, on to the show. There was, in the last day, a decision, such as it is, if you can call it that,

by the Supreme Court of the United States. That's a little bit cryptic. Maybe you can explain why it's so cryptic. The Department of Homeland Security versus DVD relating to the DVD. I thought that was music or movies, DVDs. These captions are very confusing. This term, remember a few weeks ago, we talked about the AARP case, which was not about the rights of aging people. It was about something completely different. So this case is about the propriety of deportation

of people in the United States to third countries, meaning countries that they have with the deportees, have no connection to, were not raised in, did not come from. What's odd about this decision, Joyce? Yeah. So this is, as you said, a decision, right? This is not a fully briefed case.

This is a case off of the notorious shadow docket where the court decides cases that come to it on emergency procedural motions. That means there hasn't been full briefing. There wasn't oral argument. And in this case, all we get from the—I'll just say the majority loosely—is one paragraph. And what the paragraph does is it says—

The district judge's order that said, government, you can't continue to do these deportations. I'm going to enjoin you from deporting people to what's called third-party countries. I'll explain in a sec. While the litigation is ongoing, the Supreme Court undoes that injunction. Here's what the government wants to do. If there's an immigration court order that says you can't deport deportee X

to his home country because if he goes back there, he'll be subject to torture or physical danger. The government wants to send that person to a third-party country, a country that they maybe have no ties to. Maybe they don't speak the language. Maybe it's on a different continent than where they're from, but that country has agreed to take our deportees, and the United States wants to send them there. Seemed possible.

pretty reasonable for the district court to say, government, not so fast. Let's sort this situation out before you take this irreparable step that could harm these people.

Supreme Court says, no, we're good. You can go ahead, government. You can go ahead and deport people to third-party countries while this litigation is underway. But the court doesn't write an opinion. They don't give lower courts any guidance. All we have is that one paragraph and 19 pages from Justice Sotomayor explaining why this is a terrible decision. Now, while we're talking about what is or is not reasonable to want—

Correct that the deportees, we'll call them that, not everybody wants to call them that, that they are convicted of violent crimes in the United States. Yeah, for the most part, these are people, I mean, again, this is, I think, a theme that's important for us to talk about in the deportation cases. You know, this may not be the boy next door or a choir boy. This may be someone who has committed a serious crime and the question is,

question that's at stake in these cases is whether people get due process rights. And of course, there are some people in our society who now think that only American citizens should get due process rights, or maybe people who are criminals shouldn't get them. And that's a basic fallacy, because either everyone gets due process rights or none of us do. If you can be arrested and labeled a criminal and then deported without due process,

Well, I mean, you know, I think it's pretty obvious, right? We are all at risk. So I'm going to push back a little bit, Joyce. Yeah, sure. Go ahead. There are different categories of things. So we have in the past talked about Mr. Garcia, Abrego Garcia. We're going to talk about him again. He is somebody about whom there have been allegations. There wasn't even a complaint or indictment against him until a few weeks ago when the government sought to save face with respect to their treatment of him.

So that's a person who is innocent in the eyes of the law until proven guilty. And there's the question of what kind of due process that person gets. And I think you can make the argument on the spectrum, it should be fairly substantial. Here, we're talking for the most part, let's restrict our conversation for the sake of argument to people who have been duly convicted at a full trial with all due process rights and had a jury find them guilty or they pled guilty themselves.

to violent offenses. They have already been accorded a fairly substantial amount of due process and ordinarily when your sentence is over it is not crazy or unreasonable to say they should get out of the country because they came here unlawfully, are deportable, were convicted full due process violent crimes, get the hell out. I have no problem with that. I presume that most people don't have any problem with that. The question is in this narrow circumstance, in this case,

What additional due process, after a lot of due process has been afforded to them, what additional due process is needed before you can send such a person to a third country, a third-party country? And it doesn't strike me as an initial matter, and not everyone's going to agree with this, that that's not the same thing. It doesn't require the same kind of full-blown due process right

to sending someone to prison in the first place. Do you agree with that? You know, I do. I agree with all of that. I'm still going to push back on your pushback. One is an asterisk.

Some of these people may have been convicted in their home countries or in another country. And so I don't want to vouch for the criminal justice procedure, say, in El Salvador, right? But your hypo excludes those folks. And we're just talking about people who've been prosecuted here. And due process is flexible. It's a malleable concept that fits the circumstances. It gives people, you know, an entitlement to notice and an opportunity to be heard and

And it might be that sending someone who's been previously convicted back to their home country is entirely appropriate. I've seen that happen in numerous cases. Like basically by operation of law.

law. Exactly. Numerous cases that I've prosecuted, and usually the debate is about whether they're going to serve time, whether they're going to serve their sentence in U.S. prisons, or whether they're going to be directly deported, right? Because why should we bear the cost of custody? But those are for people that are going back to their home country. And I just have this little

You know, itchy concern, maybe not for these folks as individuals, but for due process as a whole, if they can be sent to a third-party country that they are not from without an opportunity to raise whatever concerns they might have. And by the way, what the judge did in this case wasn't maximal due process. It was, you got to give them 10 days worth of notice and an opportunity to express why they have a credible fear. Right.

And maybe in most cases, they won't have a credible fear, but I don't want to foreclose that for people who do. Also, in situations where there's a mistake, right? Because if we know one thing to be true, it's that our system is imperfect. And it's possible that one of these people could be caught up in this, maybe who wasn't properly convicted. Maybe there's a mistake about name or identity or for whatever reason. That's why due process exists in the first place.

to protect the innocent from being miscategorized. Okay, I'm going to push back again on that last part. I was with you until the last part. Okay. In the hypothetical, we're talking about people who have been properly adjudicated with full due process and found guilty of a crime, either by verdict or by guilty plea. At the moment that there is a consideration of deportation,

to a country they're connected to or a third country, I wonder if this is what you were saying, there is not then a right under the Constitution or anything else that I'm aware of to relitigate your conviction other than your standard habeas petition. Oh, yeah. No, we're not talking about relitigating the conviction. We're talking about somebody who says— I'm talking about people who have been convicted of a violent crime. Yeah. They need to go, and there is a statute that Justice Sotomayor talks about that

that addresses this. So it's not of constitutional dimension as far as I can tell. That's not my argument. My argument is that the guy ought to have the opportunity to say, you've got the wrong Jose Garcia. My cellmate, Jose Garcia, is the guy who can be deported to Vietnam, not me. Now, the statute contemplates that people go back to the countries from which they came, whether it was recently or a long time ago. But sometimes those countries don't want them back.

Understandably, you know, we're not going to take somebody who is convicted of homicide or assault or rape or something else in your country. So there's something called third country removal, meaning removal to any, quote, country with a government that will accept the alien, end quote, query why third countries who have no association with the criminally convicted defendant deportee

has an interest in taking such a person. Yeah. I mean, that's really weird. We know that in the case of El Salvador, they're receiving payment. Other countries perhaps want to be in the good graces of the current administration in the United States. But it is worth contemplating who would be willing to accept violent criminals. And perhaps the secondary question is, what do they plan on doing to those people? And then you have, by operation of this law...

And another law, which is a treaty, and treaties are laws. Authorized and ratified treaties have the status of law in this country. And there's something called the Convention Against Torture and other cruel, inhuman, and degrading... Thanks for listening. To hear the full episode, become a member by heading to cafe.com slash insider or staytuned.substack.com.

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