Due Process Gone Wild, Again!

December 21, 2017

The Nation recently featured a piece titled “How a Group of Immigration Attorneys Stopped a Deportation Flight to Cambodia.” It claims the Trump administration’s recent efforts to repatriate a planeload of Cambodian nationals is unlawful and that a suit filed in federal district court will preserve due process by allowing this persecuted planeload of downtrodden immigrants to “sort out their cases.”

Of course, that’s about as far from reality as one can possibly get. Here’s the real deal:

In the past, Cambodia has refused to accept its own citizens when they were deported from the United States. But, unlike previous administrations, president Trump has pushed back against so-called “recalcitrant countries” (i.e., countries that won’t allow their own citizens to be repatriated). And in September 2017, the State Department stopped issuing certain types of visas to Cambodian travelers.

Diplomatic pressure appears to be changing the Cambodian government’s stance on returnees and the Trump administration has taken steps to effectuate the removal of all Cambodians with final deportation orders.

The planeload of Cambodians that The Nation is in a huff about is composed entirely of aliens who were here illegally, or violated the terms of their lawful immigration status, when they were convicted of crimes. They’ve all had a hearing before the U.S. Immigration Court and all have been tried in state court for crimes like domestic violence, weapons possession, assault and more serious offenses like rape and murder.

So, why is The Nation so upset that U.S. Immigration and Customs Enforcement is removing them? Well, according to Mr. Anoop Prasad, a lawyer for the Cambodians, “People, even noncitizens with deportation orders, have a right to due process.” The problem is, neither Mr. Prasad, nor The Nation, can articulate what other process these folks are entitled to.

They imply that the government is violating the Supreme Court’s restrictions on the detention of aliens set forth in Zadvydas v. Davis. That case held that the Constitution prohibits the indefinite detention of aliens awaiting deportation. In order to justify detention for a period greater than 180 days, the government must demonstrate that removal is likely in the foreseeable future or show that the alien is a flight risk or a threat to national security.

However, a claim that the government is engaged in a Zadvydas violation will be difficult to prove. The fact that U.S. Immigration and Customs Enforcement had the individuals in question processed and scheduled on a flight from Texas to Phnom Penh tends to establish that their removal was imminent. If anything, their lawsuit, not any action by the federal government appears to have prolonged their detention.

In any case, it seems that The Nation has gotten things exactly backwards. The Trump administration isn’t depriving foreign criminals of any rights. It’s actually protecting the rights of ordinary Americans to live safely in their own communities. And that’s a welcome change, because the first duty of government is to protect the citizens to which it is answerable.