As for this offhand observation, above---"Pirate Wires, it turns out, is another rich guy-backed platform for snide contrarians to complain about how people like them don’t have a platform"--these silly but mind-poisoning platforms are a plague: they remind us that men like Peter Thiel have transformed a promising technological innovation into a massive, planet-killing asteroid headed straight our way.
Thanks for an excellent and compelling point-by-point refutation of what sounds like a deeply obnoxious article.
Maybe you are planning to get to this point in part two of the post, but it strikes me there is another, even bigger way in which Trump has "eviscerated due process" and ignored existing immigration law—namely, by in some cases simply denying people asylum hearings outright (whether under expedited removal procedures or otherwise).
Trump 1.0 and the Biden administration used Title 42 to do this, as you note in this piece; but this was no longer an option after COVID. Biden's October 2024 regulation "Securing the Border" revived a similar policy, however, by asserting executive authority to categorically deny asylum to people who crossed the border outside ports of entry—at least once the number of daily arrivals crossed a certain threshold (even though this seemingly contradicts the plain meaning of the statute, which says that asylum is to be available "whether or not [someone arrives] at a designated port of arrival." 8 U.S. Code § 1158).
After this series of events, it seems undeniable to me that Trump is categorically ignoring existing immigration laws when it suits him, as you argue in this piece. And the problem goes beyond even the way he has expanded and deployed expedited removal against TPS holders, parole recipients, etc. (as terrible as those policies also are).
At an even more fundamental level, he has asserted a presidential prerogative to deny asylum requests at the outset, even though federal law—never altered or repealed by Congress—says that "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival [...] irrespective of such alien’s status, may apply for asylum in accordance with this section."
Again, maybe this will appear in part 2, but I felt the need to add it to the list of Trump's abuses against due process. Looking forward to the next part—and thanks again for a much-needed and cathartic piece!
Thank you. Walking through the complexity of how all this actually works is such an urgent public service.
FWIW, for the past couple of months I have been taking regular shifts as a volunteer observer in San Francisco's immigration court-- there are now several court watch programs, national and local, that one can get trained for. I would encourage people with the requisite free time to do this; it is a way of "getting proximate" that is quieter and less risky than protesting, but can still make an impact by helping direct emergency legal assistance to those who need it and bearing witness if the government does something illegal.
I have not yet seen any of the notorious dismiss-and-arrest games that ICE plays and that Sockel tries to justify. My key takeaways so far are:
1. Everyone who makes the process go is overwhelmed by their backlog of work. This includes the judges, the respondents' attorneys (whether hired by the immigrants or pro bono Attorney of the Day volunteers), the government attorneys, and even the interpreters. The delays in the system have grown insanely large-- people showing up to schedule "merits" hearings on their asylum cases are routinely assigned dates two to four years away. While most of the folks involved keep a brave face on it, you can often see how it wears on them and leads them to forget or confuse things. Trump of course has responded to this not by hiring more judges but by firing the ones he perceives as too lenient (three or four of them in San Francisco alone so far) and thus overburdening the remaining ones even further.
2. In spite of this, the judges I have seen are all trying their best to provide asylum seekers with the substance of the due process to which they are legally entitled, and often show genuine compassion for the people in front of them. That is probably much less likely to happen in, say, a detention center in Louisiana, but it does still happen.
3. A large proportion of people summoned to appear just don't show up, even though this almost always means that the judge has to issue them a removal order in absentia, which I presume means that ICE can then arrest and deport them with no further process.
A recent Unpopulist article persuasively argues that a lot of this is downstream of the non-independent structure of the immigration courts and that a future sane Congress should stand up a real specialty court system instead of the current executive-controlled system: https://www.theunpopulist.net/p/restoring-sanity-and-humanity-to
Thanks, Nicholas. That last point is interesting. There was a comprehensive study a few years ago which found that 8 in 10 asylum seekers show up for all their hearings. But that study ended in 2018. I wonder if current atmosphere has made people less likely to show up.
I'm not sure how magas are squaring the circle of trump's promise to focus on deporting the "worst of the worst" criminals even as ICE routinely grabs people who are legally residing in the U.S. while dutifully reporting, as ordered, to immigration hearings. Turns out actual, real-deal criminals tend to not make it easy to be located. Who knew?
“Sockel writes that the IIRIRA under Trump can’t possibly ‘eviscerate due process’ because it’s the law. But eviscerating due process is *what the law was written to do*, particularly when used in its most expansive application. The entire point of the law was to deny immigrants the right to challenge their deportations in court. That the law was passed by Congress and upheld by the Supreme Court doesn’t change this.”
I think this is the crux of our disagreement: You believe this law, passed in the 90s by Congress, is unjust, and therefore worth breaking. I think, instead, that if we really believe this law is bad, we should all be lobbying Congress to change it, for good.
IMO the core issue you have is less with the executive in power, because as you mention (as I did too) various execs have enacted this law differently — you think the law itself is too permissive. That’s the fault of Congress under Clinton, and if we don’t like it, we should be asking our representatives to change the INA. (IIRIRA was an amendment to INA, they’re not separate laws.)
“Sockel is correct about one thing — Trump’s expansion of expedited removal is not inconsistent with IIRIRA. But the sweeping powers he’s claiming also abandon the original justification for the law.”
What’s your evidence for claiming this was not the “original justification” for the law? Can you point me to any of the legislative history here? (Genuine question)
Brilliant, Mr. Balko.
As for this offhand observation, above---"Pirate Wires, it turns out, is another rich guy-backed platform for snide contrarians to complain about how people like them don’t have a platform"--these silly but mind-poisoning platforms are a plague: they remind us that men like Peter Thiel have transformed a promising technological innovation into a massive, planet-killing asteroid headed straight our way.
"You could simply claim asylum and stay here, roaming freely, toddling into court every few months (or years)"
Just think: YEARS of uninterrupted roaming and toddling ... while working, living, and paying payroll taxes. The easy life everyone dreams of.
Thanks for an excellent and compelling point-by-point refutation of what sounds like a deeply obnoxious article.
Maybe you are planning to get to this point in part two of the post, but it strikes me there is another, even bigger way in which Trump has "eviscerated due process" and ignored existing immigration law—namely, by in some cases simply denying people asylum hearings outright (whether under expedited removal procedures or otherwise).
Trump 1.0 and the Biden administration used Title 42 to do this, as you note in this piece; but this was no longer an option after COVID. Biden's October 2024 regulation "Securing the Border" revived a similar policy, however, by asserting executive authority to categorically deny asylum to people who crossed the border outside ports of entry—at least once the number of daily arrivals crossed a certain threshold (even though this seemingly contradicts the plain meaning of the statute, which says that asylum is to be available "whether or not [someone arrives] at a designated port of arrival." 8 U.S. Code § 1158).
Then, on day one of his second term, Trump asserted a new power under 8 U.S.C. 1182(f) (the same authority he used to impose the "Muslim Ban") to deny asylum under any circumstances, simply on the president's say-so. (See: https://www.federalregister.gov/documents/2025/01/29/2025-01951/guaranteeing-the-states-protection-against-invasion). This, of course, even more directly contradicts the language of 8 U.S. Code § 1158 (the asylum statute).
A federal district court paused this White House proclamation from going into effect, for this reason, back in July (See: https://storage.courtlistener.com/recap/gov.uscourts.dcd.277039/gov.uscourts.dcd.277039.71.0.pdf). Who knows to what extent the administration is actually complying with this (to your point in upcoming part 2 about facts on the ground.)
After this series of events, it seems undeniable to me that Trump is categorically ignoring existing immigration laws when it suits him, as you argue in this piece. And the problem goes beyond even the way he has expanded and deployed expedited removal against TPS holders, parole recipients, etc. (as terrible as those policies also are).
At an even more fundamental level, he has asserted a presidential prerogative to deny asylum requests at the outset, even though federal law—never altered or repealed by Congress—says that "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival [...] irrespective of such alien’s status, may apply for asylum in accordance with this section."
Again, maybe this will appear in part 2, but I felt the need to add it to the list of Trump's abuses against due process. Looking forward to the next part—and thanks again for a much-needed and cathartic piece!
Thank you. Walking through the complexity of how all this actually works is such an urgent public service.
FWIW, for the past couple of months I have been taking regular shifts as a volunteer observer in San Francisco's immigration court-- there are now several court watch programs, national and local, that one can get trained for. I would encourage people with the requisite free time to do this; it is a way of "getting proximate" that is quieter and less risky than protesting, but can still make an impact by helping direct emergency legal assistance to those who need it and bearing witness if the government does something illegal.
I have not yet seen any of the notorious dismiss-and-arrest games that ICE plays and that Sockel tries to justify. My key takeaways so far are:
1. Everyone who makes the process go is overwhelmed by their backlog of work. This includes the judges, the respondents' attorneys (whether hired by the immigrants or pro bono Attorney of the Day volunteers), the government attorneys, and even the interpreters. The delays in the system have grown insanely large-- people showing up to schedule "merits" hearings on their asylum cases are routinely assigned dates two to four years away. While most of the folks involved keep a brave face on it, you can often see how it wears on them and leads them to forget or confuse things. Trump of course has responded to this not by hiring more judges but by firing the ones he perceives as too lenient (three or four of them in San Francisco alone so far) and thus overburdening the remaining ones even further.
2. In spite of this, the judges I have seen are all trying their best to provide asylum seekers with the substance of the due process to which they are legally entitled, and often show genuine compassion for the people in front of them. That is probably much less likely to happen in, say, a detention center in Louisiana, but it does still happen.
3. A large proportion of people summoned to appear just don't show up, even though this almost always means that the judge has to issue them a removal order in absentia, which I presume means that ICE can then arrest and deport them with no further process.
A recent Unpopulist article persuasively argues that a lot of this is downstream of the non-independent structure of the immigration courts and that a future sane Congress should stand up a real specialty court system instead of the current executive-controlled system: https://www.theunpopulist.net/p/restoring-sanity-and-humanity-to
Thanks, Nicholas. That last point is interesting. There was a comprehensive study a few years ago which found that 8 in 10 asylum seekers show up for all their hearings. But that study ended in 2018. I wonder if current atmosphere has made people less likely to show up.
I'm not sure how magas are squaring the circle of trump's promise to focus on deporting the "worst of the worst" criminals even as ICE routinely grabs people who are legally residing in the U.S. while dutifully reporting, as ordered, to immigration hearings. Turns out actual, real-deal criminals tend to not make it easy to be located. Who knew?
“Sockel writes that the IIRIRA under Trump can’t possibly ‘eviscerate due process’ because it’s the law. But eviscerating due process is *what the law was written to do*, particularly when used in its most expansive application. The entire point of the law was to deny immigrants the right to challenge their deportations in court. That the law was passed by Congress and upheld by the Supreme Court doesn’t change this.”
I think this is the crux of our disagreement: You believe this law, passed in the 90s by Congress, is unjust, and therefore worth breaking. I think, instead, that if we really believe this law is bad, we should all be lobbying Congress to change it, for good.
IMO the core issue you have is less with the executive in power, because as you mention (as I did too) various execs have enacted this law differently — you think the law itself is too permissive. That’s the fault of Congress under Clinton, and if we don’t like it, we should be asking our representatives to change the INA. (IIRIRA was an amendment to INA, they’re not separate laws.)
“Sockel is correct about one thing — Trump’s expansion of expedited removal is not inconsistent with IIRIRA. But the sweeping powers he’s claiming also abandon the original justification for the law.”
What’s your evidence for claiming this was not the “original justification” for the law? Can you point me to any of the legislative history here? (Genuine question)
The two-year provision is written into the law.