Yes, the Trump administration is eviscerating the due process rights of immigrants

Part two of my response to Pirate Wires editor Harris Sockel's disingenuous defense of Trump's immigration policy

Masked federal agents wait to arrest immigrants outside of a New York City courtroom (Photo by Michael M. Santiago/Getty Images)

(Note: This is the second of a two-part series.)

Last month Harris Sockel, an editor for the site Pirate Wires, wrote a glib criticism of me for stating on a New York Times podcast that the Trump administration’s arrest of immigrants when they show up for their court hearings is an “evisceration of due process.”

This is the second part of my response. In part one, I explained how Sockel misstated and appears to misunderstand the immigration laws pertaining to “expedited removal,” the policy the Trump administration is using to deport people within days of detaining them. For this part, I’ll look at how the Trump administration is actually enforcing these laws on the ground — a critical part of “due process” that Sockel ignores completely.

Let’s pick up Sockel’s piece shortly after he references Oliver Mata Velazquez, a 19-year-old who was arrested while showing up for a court hearing in New York.

Sockell writes:

When Velazquez and others are detained in courthouses, car washes, Home Depots, or wherever, the government is moving them into expedited removal (Section 235). The Immigration and Nationality Act gives ICE the authority to do this to anyone who’s been in the U.S. for under two years. It’s always had that authority, but Biden applied it in a very limited way (only to people who swam here, or snuck in, and were caught within 100 miles of the border up to two weeks post-crossing). As of this January, the Department of Homeland Security can, once again, legally place anyone undocumented who’s been here less than two years under “expedited removal.”²

And when undocumented immigrants are placed under expedited removal? They can still claim a fear of returning home and, if it’s credible, they’ll be heard out. But either way, fear or not, the law mandates that they must be detained until their case concludes.³

This is not an “evisceration” of due process. It’s an application of 29-year-old law.

There’s a lot to correct here.

First, the raids on Home Depots and car washes are not targeted raids on people the administration knows to be here illegally. These are fishing expeditions at places where ICE thinks immigrants gather — a practice some have cheekily started calling “Kavanaugh Stops,” in reference to the Supreme Court justice’s opinion justifying racial profiling in immigration enforcement.

This means federal law enforcement is harassing and terrorizing people for “looking foreign,” whether they’re here legally or not. It means anyone with brown skin and an accent who can’t quickly prove their citizenship or legal residency is vulnerable to arrest. This is “your papers, please” immigration policy. It’s the sort of thing we used to attribute to totalitarian states.

Just this week, there was another horrifying immigration raid, this time on a housing complex in Chicago. ICE agents dropped onto the roof from helicopters, kicked down doors, deployed flash grenades, and cuffed and detained documented people, undocumented people, and U.S. citizens for hours. Children were zip-tied to one another, separated from their parents, and thrown into the back of U-Haul trucks. In another Chicago raid this week, “agents led by U.S. Secretary of Homeland Security Kristi Noem rode in a military vehicle and blew down the front door of a home where they detained six people, including two U.S. citizens.”

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Second, as I explained in part one, Trump was the first — and thus far only — president to claim the maximum expedited removal powers allowed under the Immigration Reform and Immigrant Responsibility Act, or IIRIRA. So Sockel’s use of once again is correct only in the sense that we are returning to a policy Trump implemented for the first time toward the end of his first term. It has not been the policy for the 29-year history of the law, as Sockel claims. Not even close.

Moreover, the law does not “mandate” that people seeking asylum “be detained until their case concludes.” The law gives the executive branch discretion. The Trump administration has chosen to exercise that discretion in a way that maximizes its ability to detain and deport people. And as we’ll see, they’re also going way beyond even what the outer parameters of the law allow.

Due process is important for high-minded reasons like justice and equality under the law. But more pragmatically, it’s important because people can get things wrong. When the Trump administration was snatching people off the street and sending them to CECOT — and as it’s now trying to send people to third-party countries where they’re likely to be tortured — the MAGA faithful argued that violent gang members who enter the U.S. illegally don’t deserve due process. They’re now making a similar argument about Trump’s summary executions of alleged drug smugglers in the Caribbean (even as both Trump and Vance have both joked that those executed may have just been fishermen trying to earn a living. Ha!).

Let’s say you believe that people who came here illegally or are members of a gang deserve to be sent to an overseas torture prison. (And let’s set aside what that belief says about your humanity.) Without due process, there’s no way to know that the people they sent to CECOT really were violent gang members who entered the country illegally. We had only the administration’s word. And that isn’t much.

Sure enough, many of the people they sent to CECOT had, in fact, entered the U.S. legally. About 90 percent of them had no criminal record in the U.S. Three out of four had no criminal record in any other country, either. Some had asked for and been granted permission to come here. So they were here legally. And these weren’t even honest mistakes. The Trump administration was willfully lying.

Some of the people whose tattoos the administration claimed were “proof” of membership in gangs like Tren de Aragua or MS-13 were actually just regular guys with Real Madrid or autism awareness tattoos. When officials at the National Intelligence Council job wrote a report finding no evidence that Tren de Aragua has “invaded” the U.S. — thus undermining Trump’s legal justification for sending people to CECOT — Tulsi Gabbard fired those officials.

This is why due process matters.

We’re seeing the same thing with expedited removal. We know that the administration has tried to use it on people the law says aren’t eligible for it. This has been documented in the court cases of people fortunate enough to get legal representation. What’s hard to say is just how often it’s happening, because they’re deporting people before they can be heard. And once you’re deported, it’s all but impossible to continue litigating your case.

Take the two-year residency requirement. Under federal law, the administration cannot put anyone into expedited removal who has been here longer than two years. That’s because people who have been here that long are protected by the Constitution. Court filings show that they’re doing it, anyway. That’s illegal. What we don’t know is how often they’re doing it. And that’s because the administration has put the burden on immigrants to prove when they arrived.

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Last May, U.S. Deputy Secretary of State Christopher Landau and Homeland Security Deputy Secretary Troy Edgar (R) welcomed the only people to whom the Trump administration has willingly granted asylum. Can you guess what they have in common? (Photo by Chip Somodevilla/Getty Images)

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Immigration officers aren’t required to ask how long someone has been in the country before putting them into expedited removal, and they’re also under no obligation to independently investigate the matter. If the immigrant doesn’t affirmatively tell the officer that they’ve been here for more than two years, they can be deported. They don’t get a chance to argue this later. The decision is also not appealable. Immigrants are just expected to just know all of this, despite the fact that most have no access to a lawyer.

Even those who are aware of the law and who assert that they’ve been here for more than two years must still then prove and document the date of their arrival to the satisfaction of an immigration officer — the same officers this administration is pressuring to deport as many people as possible, as quickly as possible.

If these people are in expedited removal, they’ll now have to do all of this while incarcerated at a detention center. They’ll also have to do it quickly. People in expedited removal can be deported in as little as 72 hours, even if they haven’t had a chance to prove their case. Many have been moved to facilities hours away from the friends and family who might be able to help them gather evidence. The wait to use the phone in some facilities is 24 hours. Mail in these facilities can take five to ten days to reach its recipient.

Even those who have previously retained counsel may not be given time to consult with their attorney. Three immigration attorneys told me they have multiple clients who have been here for more than two years who were snatched up and put into expedited removal before they were permitted to contact counsel. Some were then shipped to detention centers hundreds of miles away, and neither their attorneys nor their families were told of their whereabouts for days. One attorney told me that by the time he figured out where his client was being held and had begun the three-hour drive to the detention center, he learned his client was already in the air aboard a deportation flight.

A federal judge documents Trump’s due process violations

In a damning opinion last month, D.C. Federal District Court Judge Jia Cobb ruled that Trump’s use of expedited removal is unconstitutional. Cobb laid out and documented a litany of abuses since Trump implemented the new expedited removal policy. Cobb’s ruling described an administration that sees the law not as a guarantor of rights and due process, but as little more than an inconvenient impediment to its deportation goals.

Sockel is aware of Cobb’s ruling. We know this because he actually mentions it in his post. He just buries in a footnote.

A DC judge blocked this expansion recently, arguing it violates due process; the block will likely be struck down. There’s legal nuance here, but basically: deportation is a civil (not criminal) process, meaning undocumented immigrants aren’t entitled to the same level of due process as criminal defendants.

Let’s examine that last claim first — the one about how immigrants “aren’t entitled to the same level of due process” because deportation is a “civil (not criminal) process.”

This is all true, though this is also why we have traditionally paroled people while their claims are adjudicated. We imprison people for two reasons: because they’re a threat to the community, and to punish them for doing harm to other people. Asylum seekers fit neither category. The Trump administration has broadly, racistly, and falsely depicted asylum seekers as gangbangers, rapists, and "lunatics.” Even if any of that were remotely accurate (and it isn’t), punishing someone because they belong to a racial, ethnic, or national origin demographic more likely to commit some types of crime is collective punishment. We don’t do that here. Or at least we’re not supposed to.

Sockel and the Trump administration are justifying treating asylum seekers as hardened criminals — heavily militarized raids, rough and abusive arrests, extended detention in facilities under inhumane conditions* — while also claiming that because these are civil matters, the government isn’t obligated to give them the full slate of due process rights. The courts seem largely okay with this. That doesn’t mean we should be.

(*Most of these things aren’t really acceptable treatment for hardened criminals, either.)

It’s true that the courts have ruled that undocumented immigrants do not have the same full complement of rights that legal residents and citizens have. But thus far, the courts have been clear that immigrants — including undocumented immigrants — have the absolute right to be heard and to adequate due process when it comes to deportation.

Here, for example, is the Supreme Court in a 2001 decision:

. . . once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

Here’s that notoriously leftist justice, Antonin Scalia, writing for the majority in a 1993 case:

It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.

And here’s the current Supreme Court citing that same opinion earlier this year.

So while it’s true that immigration proceedings don’t offer the same due process guarantees as, say, a murder charge, the courts have been pretty clear that immigrants have the right to make their case in a fair hearing, and that any policy that undermines that fundamental right is unconstitutional.

Other than his footnote, Sockel doesn’t discusses Cobb’s ruling. He just waives it away by suggesting it’s likely to be struck down by a higher court.

Here’s what he also doesn’t mention: Dozens of other federal judges have also ruled that the way this administration is enforcing the immigration laws is illegal.

It’s certainly possible that the Supreme Court will overturn these decisions. At this point, very little from this court would surprise me. That doesn’t mean that doing so would be fair or just.

More to the point, if you’re going to accuse another writer of “spreading falsehoods” and declare that they don’t “understand the law,” you should probably take the time to grapple with the dozens of opinions by federal judges who disagree with you. You should probably familiarize yourself with the one opinion you actually admit you’re aware of — and which also thoroughly and systematically dismantles your position.

There are really only two possibilities here. The first is that Sockel didn’t bother to read Cobb’s opinion. The second is that he did read it and decided not to inform his readers about what it actually says. I’m not sure which is worse. Because again, it’s a well-documented excoriation of this administration.

Cobb writes:

[I]n the last few months, the Government has made aggressive use of its newly expanded expedited removal power. When people have appeared in immigration courts for their normally paced immigration proceedings, for instance, the Government has moved to dismiss those proceedings, promptly arrested individuals inside of those courts, and then shuttled them into much faster moving—and much less procedurally robust—expedited removal proceedings. Days later, these people find themselves removed.

. . . prioritizing speed over all else will inevitably lead the Government to erroneously remove people via this truncated process. That is because most noncitizens living in the interior have been here longer than two years, rendering them ineligible for expedited removal, and many are seeking asylum or another form of immigration relief, entitling them to further process before they can be removed. The procedures the Government currently uses in expedited removal, however, create a significant risk that it will not identify these disqualifying criteria before quickly ordering someone removed. And the lack of available review means that once the removal happens, it is largely too late to correct the error.

In defending this skimpy process, the Government makes a truly startling argument: that those who entered the country illegally are entitled to no process under the Fifth Amendment, but instead must accept whatever grace Congress affords them. Were that right, not only noncitizens, but everyone would be at risk. The Government could accuse you of entering unlawfully, relegate you to a bare-bones proceeding where it would “prove” your unlawful entry, and then immediately remove you. By merely accusing you of entering unlawfully, the Government would deprive you of any meaningful opportunity to disprove its allegations. Fortunately, that is not the law. The Constitution guarantees that “no person shall be removed from the United States without opportunity, at some time, to be heard.” That is equally true of those here unlawfully, who are “entitle[d] . . . to due process of law in the context of removal proceedings.”

Cobb then discusses how the Trump administration’s expansive application of expedited removal harms — one might even say eviscerates — due process.

Unlike section 240 proceedings, which often take place over the course of several months, the expedited removal order is “usually issued within a few days, if not hours.” As a result, noncitizens subject to expedited removal have “almost no opportunity to prepare a defense to the charge of removal.” Also unlike section 240 proceedings, individuals subject to expedited removal typically do not have an opportunity to review the government’s evidence against them or cross-examine witnesses. And because noncitizens are usually detained during expedited removal proceedings, often far from their families or any counsel, they face significant barriers in gathering materials that they might use as evidence in the proceedings.

Cobb next provides ample evidence that the administration is not complying with the expedited removal law, even under its most expansive application.

Mary first entered the United States on a visa in January 2015 and had been continuously present in the country since February 8, 2015, much longer than two years. She has five children—John, who is 18-years old and a plaintiff in this suit, and 15-, 11-, 8-, and 6-year-olds. On January 27, 2025, Mary and John were apprehended by immigration officers after a traffic stop and detained for expedited removal processing. While detained, Mary and John were not allowed to make any calls or contact an attorney. By 9AM the next day, they were issued a Notice and Order of Expedited Removal. They were “never asked or given the option to sign [their] deportation orders,” and were instead taken to “a border bridge in a car and told to walk across.” . . .

. . . Make the Road presents evidence that this structural flaw has in fact played out in predictable ways, with inspecting officers “regularly” recording “false information” during expedited removal interviews, coercing individuals to sign interview forms including false information, or otherwise rushing individuals through a cursory process.

(Note: Make the Road is the advocacy group that brought the lawsuit on behalf of its immigrant clients.)

Immigration officers are currently required to ask the people they detain a series of four questions. None of those questions inquire about how long they’ve been in the country. They also aren’t required to tell immigrants that they’re entitled to a hearing if they have been here for two years or more.

In other words, immigrants aren’t being informed of their rights under the law. (It may surprise Sockel to learn that this policy was actually implemented under Joe “Open Borders” Biden.) Again from Cobb:

. . . once the interview is complete, the individual is not afforded any other opportunity to present evidence about their continual presence. If the officer determines that they are subject to expedited removal and receives supervisor sign-off, she serves the the notice of and order for expedited removal.Individuals are then ordered removed “without further hearing or review.” . . . there is no additional process for individuals who claim to have resided in the United States for more than two years.

That’s all bad enough. But there’s ample evidence that the Trump administration is regularly putting people into expedited removal who have demonstrably been in the country for more than two years. Cobb cites the case of one person who has been here for 10 years. Another, who was deported before her hearing, had been here for 30.

The Trump administration knows that what they’re doing is illegal. They just don’t care.

When asked at oral argument what would happen if, for example, an individual unexpectedly apprehended at a court hearing wants “to demonstrate that they’ve been here for a period of two years but they don’t have any paperwork on them,” the Government came up empty, offering only “to take that back to the agency to give [the Court] an answer.” The Government has yet to provide an answer.

Zeroing out asylum

The two-year residency rule is just one area of the expedited removal law that the administration is violating. Cobb’s opinion also discusses how they’re violating the rights of a separate group of people: people who request asylum. It’s especially odd that Sockel mentions Cobb’s opinion but doesn’t bother grappling with what it found on this issue, because this is the group he spends most of his post discussing.

Sockel claims that even under expedited removal, anyone requesting asylum can “still claim a fear of returning home and, if it’s credible, they’ll be heard out.”

But that isn’t how it’s playing out in the real world. First, as Cobb explains, the decision whether to even refer someone requesting asylum to an asylum officer is first made by a regular immigration officer. If that officer — who, again, faces unprecedented pressure to ramp up deportations — decides not to refer the person to an asylum officer, or just doesn’t bother documented the asylum claim, that person may never be heard.

But even when a claim is referred to an asylum officer for a credible fear interview, the process is hardly fair. Again from Cobb:

Credible fear interviews are regularly conducted “as little as 24 hours” after a noncitizen’s initial interview with an immigration officer. While the regulations say a noncitizen “may consult” with third parties prior to that interview, they also provide that such consultation “shall be at no expense to the Government and shall not unreasonably delay the process.” Some of the detention facilities where noncitizens are held charge cost-prohibitive rates for attorney-client phone calls and have long wait-times (more than 24 hours) for scheduling calls after they are requested — even where those attorneys have entered appearances on behalf of their clients.

Unlike the two-year residency rule, if the asylum officer finds the claim not to be credible, the asylum seeker can appeal to an immigration judge — if they haven’t yet been deported.

But this process is also weighted against immigrants.

The lack of any meaningful opportunity to prepare for that appeal—either with the help of third parties or even on one’s own—undermines the reliability of this stage of the proceeding too. The hearing before the immigration judge takes place “to the maximum extent practicable within 24 hours, but in no case later than 7 days after” the initial adverse credible fear determination is made. In that short time, noncitizens are not provided with the records that were made in their credible fear interview and when they appear before the immigration judge they regularly “do not know the basis for their failing the credible fear interview.” (“It [is] very common for applicants to be scheduled for an Immigration Judge review of their negative [credible fear interview] without having had an opportunity to see or review the USCIS Asylum Officer’s decision.”).

What’s more, immigration judges “[t]ypically . . . do not allow noncitizens to explain discrepancies in their previous statements” during credible fear interviews “or to provide additional evidence or information not detailed in the credible fear interview.” Instead, the noncitizens are “frequently limit[ed] . . . to yes or no answers.” So noncitizens are not afforded a meaningful opportunity to prepare for or present evidence at their credible fear interviews, are stuck with the record they make during those interviews, and must appeal the adverse determinations coming out of those interviews without knowing the basis for the negative findings. Given these procedural shortcomings, there is little chance that erroneous credible fear findings will be corrected by immigration judges.

Here we need a slight digression to discuss immigration judges and what this administration is doing to them. Because here, too, there are due process concerns with both the law as it existed before Trump and how Trump has been interpreting and enforcing it.

Immigration judges are not Article III judges. They aren’t confirmed by the Senate and don’t have lifetime appointments. They work for the Department of Justice not the judiciary. The attorney general signs their paychecks. For most of this country’s history, they weren’t even called judges. That was a change made in the 1980s to make them appear more independent.

Prior presidents have tried to influence the immigration courts. But they’ve tended to to tinker around the edges, mostly by appointing judges who share their views.

Presidents can also influence the process with appointments to the Board of Immigration Appeals. As the name suggests, this is the body to which immigrants can appeal the decisions of immigration judges. But the board has little in common with a state or federal court of appeals. Its members serve at the will of the president and attorney general, and it isn’t shielded from political pressure by staggered or lifetime appointments.

Trump has not tinkered at the margins. Just as he has openly and unapologetically politicized the Justice Department, he has bulldozed even the illusion of impartiality in the immigration courts. It’s a process he began during his first term, and as with everything else, his aides learned from their mistakes.

Since January, Trump has been firing immigration judges by the dozens for issuing rulings he doesn’t like. He is currently trying to replace them with military lawyers (or at least those who remain after Pete Hegseth’s loyalty purge) and other loyalists with little or no training in immigration law.

As for the Board of Immigration Appeals, Trump purged all nine Biden appointees from the board. The new, Trump-approved board then recently voted to deny all bond for anyone accused of entering the country illegally. This means that, other than people accused of overstaying a visa, anyone arrested and detained for deportation may now have to argue their case from a detention center. The total population of people this administration now wants to incarcerate on immigration charges exceeds the entire state and federal prison population. It isn’t clear how the administration plans to detain all of these people. What is clear is that it isn’t possible to do it humanely. They don’t seem to care.

Aside from access to an attorney, incarceration is the leading indicator of whether or not an immigrant will get a favorable outcome. This is why the administration wants everyone detained.

Perhaps the most offensive thing about Sockel’s piece is the blithe manner in which he discusses desperate people seeking asylum. He starts by conflating undocumented people with people seeking asylum.

Our enforcement of immigration law is nowhere near perfect — ICE detained a 71-year-old U.S. citizen for eight hours last month, which seems wrong and bad — but moving undocumented immigrants into expedited removal proceedings is lawful, and arguably good. It’s more painful and annoying up-front for everyone involved, obviously, but it’s better than taking year . . . sometimes up to a decade . . . to determine that an undocumented person never had a credible reason to claim asylum (likely).

“Undocumented” immigrants and people seeking asylum are not interchangeable. Undocumented is a subjective term. It doesn’t really have a legal definition. But if it means anything at all, it means “without documentation.” There are plenty of people in traditional immigration proceedings who came here illegally, did not request asylum, were arrested and detained, and are now fighting deportation. These people can correctly be called “undocumented.”

That’s different than people who have requested asylum. Most people we call asylum seekers have been given permission to be here. Some came, requested asylum, and were reviewed and paroled into the country while their claims are adjudicated. Some are here under Temporary Protected Status.

Some of these people are now technically here illegally only because the Trump administration retroactively revoked or voided their status. Whether those revocations were lawful is an issue that’s still being litigated. But it’s misleading to call them “undocumented.”

Sockel’s casual dismissal of the seriousness of most asylum claims with his parenthetical (“likely”) is also revealing.

How does he know that most of these claims aren’t credible? Has he read any of them? Maybe he heard that claim from Republican politicians who often argue that most asylum claims are spurious. But there are plenty of reasons to be skeptical of those arguments.

In 2022, about half of asylum claims adjudicated in immigration court were granted. In 2024 it was 35 percent. Does Sockel think that those numbers should be a lot lower? If so, on what evidence does he base his position?

But this next passage is where Sockel really goes off the rails.

What’s getting lost here, though, is a simple fact. If an undocumented immigrant has a legitimate claim to asylum — if they literally fear for their life, if they’re actually being persecuted by an evil regime — they’ll be okay with a brief detention. I really believe this. If you come to America fleeing a government that wants to annihilate you, spending a week in a U.S. detention facility so you can plead your case to a judge is better than going home. In fact, it’s why you came.

I asked a few immigration attorneys what they thought of Sockel’s piece. They weren’t complementary about any of it, but they all singled out this passage in particular. One told me this paragraph is the most ignorant thing he’s ever read about immigration law. Another told me that if Sockel learned this from the two attorneys he consulted, those attorneys should not be practicing immigration law.

We can start with a pretty egregious factual error. There is no world in which people seeking asylum will have their claims favorably resolved in a week. It just doesn’t happen. As one immigration attorney told me, “The only time a claim is resolved in a week is when it’s denied.”

So yes, if you migrated thousands of miles to seek asylum here and want to be denied and deported in a week, I guess you should be grateful that you were put into expedited removal. I’d be surprised if there’s a single person who fits that description.

If the asylum officer determines that a claim does have merit, that case then just moves into the usual adjudication process. That process currently takes an average of four to six months. It can sometimes take more than a year. People in expedited removal will spend that entire time in a detention center. And again, this is what happens to people with claims found to have merit.

“For six months you’ll be wearing a prison jumpsuit,” one immigration attorney and advocate told me. “You’ll probably be getting verbally abused by guards. You’ll most likely be kept in terrible conditions, far away from your family. You won’t see a judge for at least a month.”

“It’s the ‘I really believe this’ part that made me laugh out loud,” another attorney told me. “On what possible basis could you believe that? Come spend a few months sleeping on the floor with 25 other people who haven’t showered in days and are stuffed into cells like livestock. Then tell me what you believe.”

And this is all just the start of the asylum process. It just gets more Byzantine from there. Here’s how an immigration lawyer describes what happens next in an interview with FactCheck.org:

“A lot of asylum seekers think that when you pass your credible fear interview you are now in asylum proceedings, but that’s actually not really true,” she said.

“So you’ve indicated at the border that you are seeking asylum, you’ve passed an interview that says you have a viable asylum claim, but you are not yet an asylum applicant until you actually file the I-589 form,” Gilman explained. “A lot of people, if you don’t have a lawyer, don’t even know. They think they’re already being considered for asylum. Then for those who do understand that they need to file an application still, again it may be incredibly challenging to know how and where to do that and to be able to do it in English.”

She said that border officers who conduct the initial credible fear interviews often do not explain the procedures to individuals who have been placed in removal proceedings.

“In fact, there’s been litigation about the fact that these officials don’t explain that there is a requirement that you still file your actual application and that you file it within one year of your entry into the United States,” Gilman said.

That interview was in 2021. Asylum seekers still have all of those same challenges, but if this administration gets its way, they’ll all now be required to negotiate that process while incarcerated.

The other big difference between now and then is that the Trump administration has been pressuring immigration judges to summarily reject asylum claims without bothering to assess them on their merits.

“If you passed through any other country on your way here, you have to explain why, how long you were there, and what you did while you were there,” an immigration advocate told me. “You’ll have to list every group you’ve ever affiliated with, for how long, and what you did. Any oversight or mistake, and you’re denied. If you said you were a member of a church, but didn’t mention that you held some low-level position, they’ll stamp you denied. They’re being incredibly tedious about this stuff. They’re looking for any reason to deny people.”

In other words, contrary to what Sockel so confidently claims, these people aren’t being heard. They’re being summarily rejected.

This administration has also made clear that entire point of subjecting people to mandatory detainment is to keep them in conditions so inhospitable that they’ll voluntarily give up their claims and agree to deportation — that they’ll give up their due process rights. This is why the administration and its supporters openly gloat about the inhumane conditions in facilities like “Alligator Alcatraz.”

Take the heartbreaking case of Allison Bustillo Chinchilla, a 20-year-old undocumented woman who was just deported to Honduras. Chinchilla was brought to the U.S. by her parents when she was eight. She spent the next 12 years of her life here, graduated high school with honors, and earned a scholarship to nursing school. (By the way, the U.S. is facing a potentially catastrophic shortage of nurses.)

Chinchilla was arrested when ICE agents raided her North Carolina home looking for a man who no longer lived there. But they went ahead and processed the people presently living there, anyway. This is how they learned that Chinchilla was undocumented. So they arrested her and put her into expedited removal.

Chinchilla has no criminal history. Had it not been discontinued she likely would have qualified for DACA, the clemency program for people brought here illegally as children. Instead, ICE sent her to a notoriously inhospitable Georgia detention center, where she was held in crowded, unsanitary conditions. According to her attorney, she wasn’t given regular access to her medication, and her physical and mental health deteriorated. After six months, she gave up, and agreed to self-deport to Honduras, a country she hasn’t seen since she was a young girl.

When Chinchilla gave up her due process rights because she could no longer bear the conditions at the detention facility, she asked only that be allowed to leave voluntarily. She didn’t want to have to leave the country in handcuffs, and under voluntary deportation, she might be able to reapply for entry, though the odds of acceptance are slim. A forced removal would bar her from reentering the country for at least 10 years.

ICE agreed, and a judge ordered her voluntary removal. The administration then attempted to put her into forced removal anyway.

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Allison Bustillo Chichilla

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Does this sound like due process? Is holding people in conditions so punishing that they agree to stop litigating their claims the sort of thing we should be defending as smart, common sense policy?

Another immigration attorney recently told me about a gay client who had fled persecution in his home country. (I’m keeping the details vague, because the man may try to re-enter.) His claim was found to have merit, but the administration argued against bond, and the immigration judge agreed. After four months in detention at a particularly harsh facility, the man agreed to self-deport, even though he still feared persecution in his home country.

These stories aren’t hard to find. Here’s a report from Refugees International:

In February 2025, the Trump administration removed and expelled nearly 500 asylum seekers and migrants from mostly African and Asian countries, including Afghanistan, China, Ghana, Iran, Russia, Turkey, and Uzbekistan, to Costa Rica and Panama in violation of U.S. law under agreements with those countries whose terms have not been made public. People who were forcibly transferred included pregnant women and families with young children. The asylum seekers and migrants were transferred to the custody of the Costa Rican and Panamanian governments, which immediately detained them.

There was no public record identifying the nearly 500 people sent to and received by these countries and arbitrarily deprived of their liberty in government custody, their whereabouts unknown . . .

Panamanian and Costa Rican officials also stated that the U.S. government was paying for the stay and repatriation of the third country nationals.

Our researchers spoke with people who arrived at the U.S. border to seek asylum, were denied a fear screening, did not have notice or an opportunity to express a fear of persecution and torture and apply for protection from removal to a third country, and were sent to Costa Rica and Panama under these agreements . . .

When they arrived in Costa Rica and Panama, authorities immediately detained them and held their passports, limited their contact with journalists, lawyers, and non-governmental organizations, and transported them to remote facilities lacking sufficient accommodation, food, potable water, medical care, Wi-Fi, and interpreters. Migrants unlawfully detained in Panama were held incommunicado as Panamanian authorities confiscated their phones and blocked access to lawyers.

Human Rights Watch interviewed some of the people the Trump administration sent to Costa Rica and Panama. The administration claimed these people never declared their intention to seek asylum. The immigrants insisted that they did and were ignored. I find them credible. It isn’t clear for example, why this guy would have an incentive to lie:

. . . a Russian couple said that they and their 6-year-old son were sent to Costa Rica without seeing an asylum officer. The couple said they fled Russia after the man, an election worker, tried to expose irregularities in the country’s 2024 election. “We asked for asylum many, many times to be sure that our intention could not be misunderstood, but the US officials totally ignored us,” he said.

Or this woman:

US officials just ignored Stephanie, a Cameroonian woman who said she had been raped in Cameroon by police who also killed her father and beat and arrested her brother. Stephanie had crossed the US border to seek asylum, but from the time of her apprehension and during her 19-day detention, she was never allowed to speak to her family, a lawyer, or an asylum officer. “Nobody cared why I entered the U.S., and nobody asked,” she said.

Or this one:

“I asked for asylum repeatedly. I really tried. Nobody listened to me,” said Mina, 27-year-old woman, from Iran. “I didn’t understand why they didn’t listen to me. Then an immigration officer told me President Trump had ended asylum, so they were going to deport us.”

Or this one:

Kaasheen, a 21-year-old woman from Afghanistan, said she noticed a paper on the wall in her US immigration detention center stating the right to speak to a lawyer and asked the officials about it, but they denied her request. Mina, the 27-year-old Iranian woman, said the same, telling us, “On the wall I saw a sign telling us our rights. It said we can see our family. It also said we can make phone calls, including to a lawyer. The US immigration officers never let us do any of these things, even when we asked.”

These people were all removed toward the beginning of the year. But the disappearances are still happening. The Miami Herald reported a few weeks ago that more than 1,000 of the men detained at “Alligator Alcatraz” are now missing. There’s no record of where they are, and no one from the government has contacted their families or lawyers. They’re just gone. The most likely explanation is that they’ve been deported to and dumped in a third country.

Let’s get back to Sockel:

It’s dishonest of Ezra Klein, Radley Balko, and the New York Times to characterize the U.S. expediting these hearings as an “evisceration” of due process, or a sign that Trump is “building his own paramilitary force.”

Sockel is correct that the administration’s expedited removal policy is not evidence that Trump is building his own paramilitary force. I never claimed it was.

I do think Trump is trying to build a paramilitary force that is loyal only to him. I explained why in the rest of the interview. (I also explain in more detail here.)

But it has nothing to do with his evisceration of due process, which I briefly discussed when Klein asked me about it. This is pretty clear if you read the interview. It isn’t that difficult to understand.

That brings us to the most glaring omission from Sockel’s piece. He writes:

Our asylum system has been extremely forgiving over the last several years: anyone could show up at the border claiming asylum, for any reason, and be given a years-long hall pass to stay in America while their case creaks through the courts. Asylum is good, I believe in it! Give us your tired, your poor, etc. etc. — it should be easy to come to America fleeing persecution.

I’m going to go out on a limb here: I don’t think Sockel really thinks that asylum is good. I don’t think he really believes in it. I think he’s bullshitting.

Here’s why I think that: Donald Trump and his administration want to end asylum entirely.* They’ve been pretty up front about this. If Sockel truly believes asylum is a good thing — if he truly thinks it should be easy to come to America to flee persecution —you’d think that somewhere, anywhere, in his rant about how a journalist was unfair to Donald Trump on a podcast, he’d have addressed this. He does not.

(*The exception of course is for white South Africans. The administration has ended all asylum programs except for the one Trump created for this group. He has also redirected all existing resettlement funds — funds that originally helped resettle tens of thousands of people — to the 138 white South Africans that Trump has invited to resettle in the U.S. since May.)

Here’s Trump bashing asylum in his embarrassing, batshit crazy speech to the United Nations:

Reuters also reported recently that this was coming. The administration has been saying for weeks that it plans to push the UN to adopt a radical restructuring of asylum. The White House proposal would severely limit the right of asylum seekers and release the U.S. and other countries from their decades-long commitment to take in people fleeing war and persecution.

Trump’s speech took place a few weeks after Sockel’s article was published. But this isn’t some big secret. Trump tried to end asylum during his first administration. One of the first things he did upon taking office in January was suspend USRAP, the U.S. Refugee Admissions Program. He also halted all funding for refugee resettlement programs, stranding more than 100,000 people who had been pre-approved for asylum. He instructed his aides to look for a fake public health threat so he could continue deporting people without due process under Title 42.

Stephen Miller, the architect of Trump’s immigration policy, has openly expressed his desire to end all refugee and asylum programs in the U.S. He wants the number of refugees we take in to be zero. During a meeting in 2019, he reportedly said of ending asylum, “It’s all that I care about.” One of Miller’s ongoing personal obsessions is to deny or revoke asylum to Afghans persecuted by the Taliban for aiding U.S. soldiers during the war.

You’d think such a staunch asylum supporter like Sockel would be fairly angry about these policies. You’d think in an article arguing that, actually, this administration is taking a fair and common sense approach to asylum, he’d at least mention that Trump and his chief immigration advisor have vowed to end asylum entirely.

The courthouse arrests

Since this all started with Ezra Klein asking me about the administration arresting people when they show up for their court hearings, I think it’s important to explain exactly how unfair and destructive those particular tactics are.

Most of these cases involve people who have been paroled into the country for humanitarian reasons. Under federal law, immigrants paroled for humanitarian reasons cannot be put into expedited removal. This administration is doing it anyway.

These people arrived in this country, made their asylum claim, were paroled, and began building their lives here under a set of mutually agreed-upon rules. When they’ve dutifully showed up for court, as those rules require them to do, the Trump administration is taking them out of conventional immigration proceedings, putting them into expedited removal, and then arresting and detaining them. They’re then being “reviewed,” but only under the lopsided procedures outlined above. And then they’re being deported.

It would be one thing to change these policies going forward, to apply them as new people come to the U.S. seeking protection. But retroactively changing these policies, so that the U.S. government reneges on its promises to people already here, isn’t fair or just, and it sure as hell isn’t “due process.” It’s an ex-post-facto bait-and-switch, and it’s incredibly cruel.

The case Sockel himself invokes — that of 19-year-old Oliver Eloy Mata Velasquez— is a good example. Here’s a summary of that case from the ACLU:

Oliver has done everything the government has asked him to: he followed the process the United States established for people seeking asylum to present at the border on a certain date; he appeared on that date, at which point the government decided to release him while he applied for asylum; he lawfully entered the United States where he reunited with family; he applied for and was granted permission to work; and, critically, he attended his immigration court proceedings at the time and location directed. When he attended immigration court on May 21, 2025 for a routine hearing, he expected to be able to proceed with an application for asylum in those proceedings. Instead, the government arrested him and is now attempting to summarily remove him before he can meaningfully access relief through those proceedings. 2. Oliver’s arrest and detention are wholly unjustified and unrelated to any individualized consideration of Oliver’s circumstances.

In the time he has lived in the United States, Oliver has done all he can to integrate into his community, begin to learn English, and lawfully work. He dreams of beginning an education in the United States and continuing to establish roots in this country. He plainly is not a flight risk—as evidenced by his dutiful appearance at his scheduled immigration court date, nor is he a danger to the community. Rather, Oliver was arrested and detained, along with countless others over the past two weeks, as part of a nationwide campaign to summarily arrest law-abiding, noncitizens like Oliver when they attend their immigration court hearings.

Does this sound fair? Does it sound like due process? Does it sound just?

The Trump administration is targeting immigrants who show up for their court hearings for one reason: they’re easier targets. It’s hard to find people who don’t want to be found. It’s a lot easier to snatch people up when they’re trying to do the right thing.

Sockell punctuates his position with an incredible footnote —one that seems utterly oblivious to basic cause and effect:

Detaining asylum seekers during their hearing process has the added benefit of eliminating no-shows in court, which can slow down the process even more.

According to a University of Pennsylvania study of nearly three million immigration cases between 2008 to 2018, 83 percent of asylum seekers attended all of their scheduled court hearings. Many of those who missed one hadn’t been properly notified, or failed to show up only due to hardship. This, despite the fact that only about 1 in 3 were granted asylum.

In other words, even knowing the odds were stacked against them, these people continued to show up for court to argue their cases.

A Vera Institute study found that when asylum seekers are given an attorney through a civil society program, the rate of showing up for court increased to 98 percent. So if you want more people showing up, get them attorneys.

The Trump administration is of course restricting access to attorneys, or deporting asylum seekers before they can obtain one. This is because they also know that when you have an attorney, you’re far more likely to win your case.

That’s just another way of saying that people fare better in this system when they have access to real due process. And that’s why this administration’s expedited removal policy is designed to circumvent it. It’s why they’ve tried to bar “know your rights” groups from detention centers.

That 83 percent figure is remarkable. It demonstrates that the vast majority of people want to enter this country legally. It shows that most people seeking asylum respect our laws and rules, even knowing that those laws and rules may result in their removal.

I suspect that number is a lot lower now — not because immigrants today are more likely to cheat the system, but because if there’s one policy that will make people stop showing up for their hearings, it’s arresting and deporting them when they do. And making sure everyone knows that you’re doing it.

Finally, there are basic civility, decency, and rule of law reasons why it’s astonishingly stupid to arrest people when they show up at court. It makes immigrants afraid of courthouses. It makes women immigrants less likely to testify in domestic violence cases. It means witnesses stop showing up to testify in criminal cases. It converts the courthouse from a place where we supposedly administer justice to a place immigrants avoid — including immigrants who are here legally.

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In response to the first part of this series, one reader chided me for my “defensiveness . . . bordering on contempt,” and for having the “emotional development of a 16 year old.”

I won’t comment on that last dig, but I’ll cop to both defensiveness and contempt. I’m defensive of civil liberties and the rule of law. I’m defensive of immigrants, and of the immense benefits we get from immigration. I’m angry at the cruel, dehumanizing way this administration is treating powerless and marginalized people. And so yes, I’m also pretty goddamned contemptuous of anyone who who arrogantly takes a “nothing to see here” posture about all of this, who pompously scold the people trying to call attention to these abuses, especially when these gliberatti clearly don’t know what the hell they’re talking about.

If it’s really true that Pirate Wires is “a must-read” in the the tech world, that’s an audience with a lot of money, and with significant pull with this administration. It’s also a group that itself is disproportionately first or second generation immigrant, and that has traditionally supported a more open immigration policy — at least prior to 2024.

But then some of the more recognizable and wealthy personalities in tech did a heel-turn toward Trump, and with that adopted his virulently anti-immigrant politics. This is why we’re seeing pieces like Sockel’s.

I care very little about what Mike Solana or Harris Sockel think of me. What I find depraved is the way they’re giddily gaslighting the exploitation and persecution of desperate people — and then having the gall to claim that they support asylum.

Until the courts finally stopped them, this administration was literally snatching people off the street and extraditing them to what can only accurately be called a concentration camp — then brazenly lying about why they did it. They’re still breaking up families, holding people in horrific conditions, and deliberately sending people to countries they’ve never known — countries currently at war, or where torture and persecution are common. They’ve tried to deport people for writing op-eds, for god’s sake. They admitted in open court that they arrested and detained a journalist who was here legally because he was reporting on ICE raids. That journalist is expected to be deported to El Salvador today. Journalists aren’t treated kindly in El Salvador.

None of this seems to matter to people like Solana and Sockel. It’s just a game to them. Want to earn your heterodoxy badge? Tell your readers that this administration is fully committed to fairly and justly adjudicating asylum claims even as it explicitly declares its intent to end asylum. Tell them it’s silly and hysterical to suggest that this administration doesn’t care about due process, even as it threatens to prosecute people for the “crime” of educating immigrants about their rights. Tell them that asylum seekers should be grateful that they’ve been arrested and incarcerated for months after risking their lives to escape persecution in their home countries, even as this administration and its supporters gloat about inhumane detention conditions, and it makes clear that its goal is to deter future migrants by making those who do come here suffer as much as possible.

In short, see if you can get your audience to stop believing their own eyes and ears.

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Thanks to David Bier, Javad Khazaeli, and Aaron Reichlin-Melnick — along with one other immigration advocate and two other immigration attorneys who asked not to be named — for their help with this post.

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