Department of Homeland Security v. D.V.D. (and Rhoney v. Barbosa de Cunha)

[SPEAKER_02]: Hey everyone, this is Leon from Prologue Projects. [SPEAKER_02]: On this week's episode of Five to Four, Peter, Reannon, and Michael are talking about Department of Homeland Security, B-B-B-D, and Rooney, V-Barboza, DeClinia. [SPEAKER_02]: Both immigration cases are said to be heard by the Supreme Court in the coming months.

[SPEAKER_02]: The first of these cases is about the deportation of immigrants to third countries, a practice that was once used sparingly in the U.S. with the intent to limit possible harm to the person being removed. [SPEAKER_02]: But in the second Trump administration, its use has exploded as both a method of deportation and a way to create fear in immigrant communities.

[SPEAKER_02]: The second case is about mandatory detention. [SPEAKER_02]: The law says that anyone who enters the country without being admitted by an immigration officer must be detained without fail until their removal proceedings. [SPEAKER_02]: Before Trump returned to office, this law only applied to new or recent arrivals in the country.

[SPEAKER_02]: Now, the administration is trying to apply it to any undocumented person, including those who have been in the US for three years, making it possible to effectively detain millions of people without bail. [SPEAKER_02]: This is five to four, a podcast about how much this Supreme Court sucks.

[SPEAKER_03]: Welcome to five to four where we dissect and analyze the Supreme Court cases that have sent our civil rights spinning like Rean and accidentally drinking 50 milligrams of THC. [SPEAKER_03]: I'm Peter. [SPEAKER_03]: I'm here with Michael. [SPEAKER_03]: Hey everybody. [SPEAKER_00]: And Rean and I live to bitch.

[SPEAKER_00]: I spawn. [SPEAKER_00]: But here I am today to tell the tale. [SPEAKER_03]: Yeah. [SPEAKER_03]: And maybe we should start this tale with the fact that [SPEAKER_00]: Yeah, ahead questions. [SPEAKER_03]: We were all responding to them, and then also, yeah, it was not responding to us. [SPEAKER_03]: It's great.

[SPEAKER_00]: I had questions, and I needed to fire them off. [SPEAKER_00]: Yeah, I was listening to the walls of my house, hold up the roof of my house. [SPEAKER_00]: That's how gone I was. [SPEAKER_00]: Now, listen, I sometimes partake in a THC shelter, usually those are five or 10 milligrams, and usually maybe once a quarter, I have half of that.

[SPEAKER_00]: This one, same size can, looks the same. [SPEAKER_00]: I grab it because the flavor looks interesting. [SPEAKER_00]: It was a hundred milligrams of THC in this can. [SPEAKER_00]: I drink half of that, meaning I drink 50. [SPEAKER_00]: When I usually have maximum five. [SPEAKER_00]: I, well, I texted a lot of people.

[SPEAKER_00]: I texted my partner, first and foremost, who wasn't at home at the time. [SPEAKER_00]: And I said to him, I really wish you could be home because I've done something grave and terrible. [SPEAKER_00]: And I'm really struggling. [SPEAKER_00]: And he did come home right away. [SPEAKER_00]: And when he got home, he found that I was, [SPEAKER_00]: crying to a TikTok video of a woman being pulled on stage to do a dance at a Jason to rule the concert.

[SPEAKER_00]: Yes. [SPEAKER_00]: Yes. [SPEAKER_01]: I watched it and was cracking up. [SPEAKER_01]: I was like, all right, she's laid. [SPEAKER_01]: She did, but I can't imagine being moved to tears by it. [SPEAKER_00]: I was sobbing. [SPEAKER_00]: I was sobbing. [SPEAKER_03]: You text it out. [SPEAKER_03]: Have you guys ever read the courage to be disliked?

[SPEAKER_03]: We also know. [SPEAKER_03]: Fuck you dying about. [SPEAKER_00]: And then I didn't respond. [SPEAKER_03]: And then that was it. [SPEAKER_03]: And we still to this day. [SPEAKER_03]: Don't know what you were curious about. [SPEAKER_00]: But I need to do why. [SPEAKER_00]: Sitting here in front of you today.

[SPEAKER_00]: I don't know why I was asking you about that book. [SPEAKER_00]: But yeah. [SPEAKER_00]: So my boyfriend just kind of cocooned me in on the couch. [SPEAKER_00]: He was like, you're going to be okay. [SPEAKER_00]: And here I am. [SPEAKER_00]: I lived bitch. [SPEAKER_00]: You should take me down.

[SPEAKER_00]: You really, really cannot take me down. [SPEAKER_03]: No, and Should go without saying 100 milligrams of THC and a can of seltzer should be illegal. [SPEAKER_03]: I mean, that's crazy. [SPEAKER_03]: It's that's crazy. [SPEAKER_03]: It's wild. [SPEAKER_03]: Supreme Court. [SPEAKER_03]: We call upon you [SPEAKER_03]: find something in the Constitution.

[SPEAKER_03]: Depth in. [SPEAKER_03]: And make it happen. [SPEAKER_03]: All right. [SPEAKER_03]: Today we're doing a double feature. [SPEAKER_03]: Two cases about immigration that are pending before the Supreme Court. [SPEAKER_03]: The first is Department of Homeland Security, the DVD, which is about the deportation of immigrants to so-called third countries.

[SPEAKER_03]: And the other is Roni V, or both of the Kunia [SPEAKER_03]: So let's start with DHS VDVD. [SPEAKER_03]: This one has been bouncing around since early 2025 and the Supreme Court just gave a preliminary ruling at the end of September and we'll be hearing the full case later this term. [SPEAKER_03]: So real handed to you for the background.

[SPEAKER_00]: Yeah, you know, we just did that Supreme Court, the term preview episode where we talked about cases that are on the docket set for oral argument going to be heard by the Supreme Court, but we said in that episode, I think Michael, you pointed this out a couple of times that [SPEAKER_00]: The Supreme Court will surely take other cases as well.

[SPEAKER_00]: And so here you see just in the past week or so, there's two more immigration cases that are now set for oral argument. [SPEAKER_00]: The Supreme Court is going to decide on the merits these cases, even though both of them have been bouncing around the federal courts for about a year now.

[SPEAKER_00]: So yes, starting with DHSB DVD, I want to just read a quote right now about third-country removal. [SPEAKER_00]: This is a quote from the president of a refugee resettlement agency called H.I.A.S. [SPEAKER_00]: Mark Hettfield. [SPEAKER_00]: He says, imagine getting deported to a country where you have no family ties, where you don't know the language or the culture, to which you have never even been and within a trotious human rights record.

[SPEAKER_00]: Imagine that this happens when you may not be able to access a lawyer to represent you prior to being deported to such a place. [SPEAKER_00]: This is what the Trump administration is doing. [SPEAKER_00]: So this is third country removal. [SPEAKER_00]: I'm sure listeners have heard about this in the news.

[SPEAKER_00]: It is when someone is put in removal proceedings deported by the Trump administration, not to their country of origin, but to another country that they're not from. [SPEAKER_00]: They don't have citizenship and have in many cases never even been to. [SPEAKER_00]: Have no connections there whatsoever.

[SPEAKER_01]: Right, and to be clear, they're not being like dropped off there to like live new lives in Sudan or whatever, they're either being imprisoned in these third countries or the third countries are just being used as conduits to move them on to, you know, their home countries or countries of origin where for one reason or another, we're not supposed to be sending them.

[SPEAKER_00]: Yeah, so how does the Trump administration since last year justify this policy? [SPEAKER_00]: Well, there's a section of the Immigration and Nationality Act, the INA that does allow DHS to deport migrants to countries other than their country of origin. [SPEAKER_00]: It's just that normally and historically, this provision, this discretion, let's say, for DHS to act this way or pursue this kind of removal, has been used really, really, really, rarely.

[SPEAKER_00]: Normally, as part of deportation proceedings with immigration judge does, is designated country where the migrant should be deported. [SPEAKER_00]: If there's going to be a deportation order, and of course, usually that country that's designated by the judge is the person's country of origin.

[SPEAKER_00]: But, of course, we know in order to like facilitate both. [SPEAKER_00]: the escalation, the high numbers of deportations that the Trump administration is seeking, but also the expedited timeline that they are trying to do mass deportations on. [SPEAKER_00]: The Trump administration has like way, way expanded its use of third country deportation.

[SPEAKER_00]: And importantly, legally, this is also happening without giving people notice or an opportunity to say, no, wait, I have a fear claim. [SPEAKER_00]: I have a very good reason why I shouldn't be removed to that country. [SPEAKER_00]: So what has this looked like in the past year? [SPEAKER_00]: human rights groups report that more than 25,000 people have been deported to 29 countries under this policy.

[SPEAKER_00]: 25,000 people removed to countries. [SPEAKER_00]: They may have never been. [SPEAKER_00]: They are not from they have no connections to. [SPEAKER_00]: Now, the vast majority have been removed from the US to Mexico, but other third countries include, of course, countries where these people can be imprisoned, [SPEAKER_00]: or countries with really, really high levels of civil and political instability, civil war, talking south Sudan, Libya, and there's been other reporting to around the diplomacy, like the diplomacy manipulation and pressures that the Trump administration has done on many, many dozens of countries trying to basically force them, coerce them into accepting [SPEAKER_00]: So, let's talk about the plaintiffs here, like how this case got to the Supreme Court, who is arguing that this is unjust, and they shouldn't be removed to a third country.

[SPEAKER_00]: This is a class action, so it's a group of plaintiffs, plaintiff migrants, who are facing third country removal. [SPEAKER_00]: All of these people are identified in all of the court documents by their initials. [SPEAKER_00]: So, first up, DVD is a citizen of Cuba, he has severe illnesses that are managed by medical care in the United States.

[SPEAKER_00]: He fears being removed to countries where he would not get that care, and he could be imprisoned on arrival. [SPEAKER_00]: M. M is a citizen of Honduras. [SPEAKER_00]: She fled the country after her husband beat her, her husband found her in a third country. [SPEAKER_00]: Mexico and attacked her, so she fears [SPEAKER_00]: I would say a very reasonable fear of being removed to a third country.

[SPEAKER_00]: EFD is an Ecuadorian national who fled Ecuador after police robbed him there and attacked him physically for refusing to transport drugs for them. [SPEAKER_00]: On route to the U.S., this man was kidnapped and robbed in both Guatemala and Mexico. [SPEAKER_00]: Those are examples of third countries accepting deportations from United States and often, they then send the migrants back to their country of origin.

[SPEAKER_00]: OCD is the last one listed as one of the plaintiffs. [SPEAKER_00]: He is a gay man from Guatemala who was violently persecuted there for his sexual orientation. [SPEAKER_00]: He was deported by the United States in March 2024. [SPEAKER_00]: when DHS refused to give him a credible fear interview.

[SPEAKER_00]: He fled Guatemala again and entered Mexico where he was kidnapped and sexually assaulted, then he made it back into the U.S. [SPEAKER_00]: In 2025, an immigration judge granted him with holding a removal. [SPEAKER_00]: Like, okay, you can stay for the time being. [SPEAKER_00]: You can't be removed to Guatemala, your country of origin, but two days later without any notice, DHS deported him to Mexico, and Mexican authorities then removed him to Guatemala, his country of origin, where he was violently persecuted.

[SPEAKER_00]: Now, [SPEAKER_00]: a district court intervened at that time ordered his return and DHS did bring this man back he's back in the US now. [SPEAKER_00]: But this is the reality, like the point of describing all of these individuals, lives and their circumstances, this is the reality. [SPEAKER_00]: They fled extreme danger.

[SPEAKER_00]: They cannot return to their country of origin and being deported to a third country, also [SPEAKER_01]: yeah and i want to take a moment to just really sit with how fucked up this is like it's it's really horrendous these are human beings they're being shackled and whisked off to some country they've never been to where speaking languages they don't speak unstable violent [SPEAKER_01]: maybe they end up in prison there, maybe they just get returned to another country from which they fled because they weren't safe, no matter what, no matter what the scenario is, it's horrific.

[SPEAKER_01]: Right? [SPEAKER_01]: There's no good outcomes with this. [SPEAKER_01]: It's just really despicable how we're treating these people. [SPEAKER_00]: So immigration rights groups filed this class action lawsuit on behalf of migrants subject to third-country removal. [SPEAKER_00]: And the case like we said, it's been pinging around the district court system.

[SPEAKER_00]: And basically procedurally, where we're at right now, is that district court judge and Massachusetts, back several months ago, issued another injunction on this policy, DHS obviously applied for an emergency stay from the Supreme Court. [SPEAKER_00]: And Supreme Court also granted cert meaning they said we're actually going to take up the merits of this case.

[SPEAKER_00]: That's how we're getting to the Supreme Court this term. [SPEAKER_03]: So let's talk a little bit about the law here. [SPEAKER_03]: What gives the administration the authority to remove people to third countries? [SPEAKER_03]: What's the history of this practice? [SPEAKER_03]: It's not totally unheard of, it's something that can be done legally by DHS, if sending the person to their country of origin is impracticable, in advisable or impossible.

[SPEAKER_03]: It's something that's historically rare, but the Trump administration has ramped it up in an effort to amyzerate immigrants and presumably encourage self-deportation. [SPEAKER_03]: The original purpose of this law [SPEAKER_03]: country of origin, if that country of origin is going to be particularly dangerous place for them, right, if they fled it because they were fleeing violence of some kind.

[SPEAKER_03]: But legally, there is no question that the law allows for this in some form, in some situations. [SPEAKER_03]: What's at issue here is whether people are receiving adequate notice and an adequate chance to contest their removal. [SPEAKER_03]: Yeah. [SPEAKER_03]: So back in the summer of 2025, like we were saying, a federal district court judge put a temporary halt to the practice Supreme Court, undid that on its shadow docket.

[SPEAKER_03]: There was no majority of opinion in that case. [SPEAKER_03]: The Liberals did dissent. [SPEAKER_03]: And the basic argument that they made was like, look, [SPEAKER_03]: This whole law is designed from top to bottom to avoid sending people to places where they are in danger. [SPEAKER_03]: So they need to be afforded due process.

[SPEAKER_03]: There was also this sort of subplot which you also mentioned of bad faith and disobeying the court, right? [SPEAKER_03]: There's basically no question that DHS was removing people in violation of court order, right? [SPEAKER_03]: There's something that got a lot of press in 2025. [SPEAKER_03]: So the descent says, quote, here in violation of an unambiguous TRO, the government flew four non-citizens to Guantanamo Bay and from there deported them to El Salvador.

[SPEAKER_03]: Then in violation of the very preliminary injunction from which it now seeks relief, the government removed six class members to South Sudan with less than 16 hours notice and no opportunity to be heard. [SPEAKER_01]: Yeah. [SPEAKER_03]: and what they point out is that generally speaking, when a party acts in such clear violation of the law, they do not then get to avail themselves of the equities, meaning that a lot of the judgments in these preliminary cases are about like balance and fairness, if you act in clear bad faith, you don't get to then make arguments about fairness, and balance, and hey, this, you know, [SPEAKER_03]: This would be a hardship for us as the government because of blah, blah, blah, blah, right?

[SPEAKER_03]: Right. [SPEAKER_03]: If you act in bad faith, you tend to forfeit those arguments. [SPEAKER_03]: That is sort of a general principle that courts operate under. [SPEAKER_03]: And of course, this majority in the Supreme Court just ignores that. [SPEAKER_03]: So the district court last month makes a final ruling saying that the Trump administration policy is illegal.

[SPEAKER_03]: It gets very quickly escalated to the Supreme Court. [SPEAKER_03]: And they lift that order while they decide the case, right? [SPEAKER_03]: all but signaling that they will rule for Trump ultimately. [SPEAKER_03]: I have this overarching feeling about this case that we're arguing around the point, like this case is about whether people being deported to third countries are receiving proper due process, whether they get notice and dehearing.

[SPEAKER_03]: But that feels like an ancillary concern, like the real issue is that we have a law designed [SPEAKER_03]: to prevent people from being deported to countries where they are in danger. [SPEAKER_03]: And the Trump administration is implementing an executive order, specifically designed to deport people to countries where they are in danger.

[SPEAKER_01]: Right. [SPEAKER_03]: Everything else feels like Manusha, like the usual removal idea is like, well, we're going to deport you, but we need to get assurances that you won't be tortured, that you won't be persecuted, etc. [SPEAKER_03]: And the Trump administration is like, well, let's send them to places where they are likely to be tortured and persecuted or misrated in some form.

[SPEAKER_03]: Like, I mean, they're contracting with South Sudan. [SPEAKER_03]: I mean, what the fuck are we talking about? [SPEAKER_03]: Yeah. [SPEAKER_03]: Yeah. [SPEAKER_03]: We're talking about notice any hearing. [SPEAKER_03]: Yeah. [SPEAKER_00]: a country where you will be in danger and a country that in many cases is willing to then remove you to your origin country, which is the starting country where you would be in danger and where the United States is not supposed to deport you.

[SPEAKER_03]: Right. [SPEAKER_01]: Right. [SPEAKER_01]: Yeah. [SPEAKER_01]: I think that's right. [SPEAKER_01]: And I think it goes to like a larger sort of attitude of lawlessness about the Trump administration that we see in this case, which comes through in the due process stuff as well, right? [SPEAKER_01]: But there's the inversion instead of avoiding sending people to dangerous countries, you're purposely sending people to dangerous countries.

[SPEAKER_01]: And to be clear, that comes from the United Nations Convention Against Torture, which was operationalized in the U.S. Code where a party to the treaty, we've made it law. [SPEAKER_01]: There are regulations implementing that law. [SPEAKER_01]: This is in violation of several levels of prohibitions.

[SPEAKER_01]: But then the due process stuff is also like the district court said, like these people would have had to be quote-unquote yelling at any of the jailers that they were afraid to go to South Sudan. [SPEAKER_01]: in order to satisfy the requirements of the law, right, like, literally just in the cell being like, I don't want to go like that was that was their opportunity.

[SPEAKER_01]: That was their notice and opportunity was like 12 hours like that, right? [SPEAKER_01]: Or like that have to frantically Google what the conditions were in the south Sudan to find out whether they should be afraid to be deported there, right? [SPEAKER_01]: Like, [SPEAKER_03]: Yeah, look, we're like nerds, right?

[SPEAKER_03]: Like if someone says, hey, I'm sending you to South Sudan, I know what's happening. [SPEAKER_03]: If you're just like a random person from Guatemala or wherever, do you actually know what's going on in South Sudan? [SPEAKER_03]: You have to fucking, you have to be like up on international affairs.

[SPEAKER_00]: Also assuming that they even told you where the fuck you're being removed, which they don't. [SPEAKER_03]: Obviously they're not telling them. [SPEAKER_00]: Exactly. [SPEAKER_00]: They're not even telling them we're moving you. [SPEAKER_00]: You're getting on a plane like you're just they're just say move They're not even saying you're being deported right now in the case of O.C.

[SPEAKER_01]: G. I think they told them He was going to Mexico 15 minutes before he got on the bus. [SPEAKER_01]: Yeah, like yeah, legitimately like 15 minutes Like that's it like we're taking you to Mexico and then 15 minutes later he's on the bus heading down there [SPEAKER_00]: I mean, there are tons of instances of this.

[SPEAKER_00]: Like it's happened to 25,000 people as an estimate of family's say, yesterday I talked to him and he was in immigration detention. [SPEAKER_00]: I knew where he was and today he called me and he's in another country. [SPEAKER_00]: He's in Ecuador, he's in Guatemala, he's in Africa. [SPEAKER_00]: It's so shocking that like lack of process, the lack of procedure, obviously.

[SPEAKER_03]: This should be unconstitutional on its face and illegal on its face, not just because of the lack of process but because of the intent. [SPEAKER_03]: And this is something that constantly bubbles up in these cases that all of these cases end up being about process and procedure because you're not allowed to be like you're obviously doing this for evil fucking reason.

[SPEAKER_00]: Yeah, you're doing this uponish immigrants, you're doing this in violation of the principles that like the United States is a signatory on around asylum granting asylum, you know, persecution from other countries and where people shouldn't be returned to. [SPEAKER_03]: And everyone knows what's happening behind the scenes here, right, which is like Steven Miller and friends are like, right, what's the worst place we could sense them.

[SPEAKER_03]: South Sudan. [SPEAKER_03]: Right. [SPEAKER_03]: If you look at the list of countries, many of them are very clear. [SPEAKER_03]: I mean, it's a combination of things. [SPEAKER_03]: One is they're just finding countries who are willing to take people, right? [SPEAKER_03]: Presumably in exchange for money or favor.

[SPEAKER_03]: But the other is countries where it's like notably unstable. [SPEAKER_03]: Congo, Liberia, Rwanda, South Sudan, Sierra Leone. [SPEAKER_03]: These are places where it's [SPEAKER_03]: You know, we talked a ton last year about sea coat and that's just sort of like one example that got a lot of press where the whole point was we're going to send people to this country where there's an assurance of cruelty the complete inversion of what the law is actually built to do they want a guarantee of cruelty yeah.

[SPEAKER_00]: Yeah, and, you know, just one more point, unlike taking advantage of countries where the situation is very unstable, politically, socially, you know, otherwise in some of the reporting on the, you know, let's just call it the diplomacy aspect of the Trump administration sending diplomats with orders to pressure countries to accept these third country removals from the United States.

[SPEAKER_00]: There is also the threat being utilized, especially for the African countries, that if they don't accept, they'll be put on the travel ban list. [SPEAKER_00]: The Trump administration will say, nobody from your country is allowed into the United States at all. [SPEAKER_01]: Yeah. [SPEAKER_01]: Also, I think it's worth noting that, like, I think in Libya and specific, which is on the list, [SPEAKER_01]: Right.

[SPEAKER_01]: Yes. [SPEAKER_01]: A lot of the instability in violence there was also sparked or exacerbated by their agreement to accept detainees. [SPEAKER_01]: They came public, the reported that they're going to accept detainees, which was sparked street violence, the killing of opposition leaders.

[SPEAKER_03]: Like I mean, like Libya also already, like again, just like a country that is basically known for its instability over the course of the last 15 years. [SPEAKER_03]: For reasons, we couldn't possibly explain, right? [SPEAKER_00]: That's what I thought might say, Michael, is like not to mention that a lot of these countries that have instability are experiencing that instability because of the United States.

[SPEAKER_01]: Yeah, this isn't the first time that our policies have created or or contributed to the instability in these countries. [SPEAKER_01]: But then this policy in specific is making it worse. [SPEAKER_03]: I don't want to do something that sounds like both sides of the equivocation, but like Barack Obama creating a power vacuum that collapses the state of Libya, and then Donald Trump sending immigrants there.

[SPEAKER_03]: There's a synchronicity. [SPEAKER_03]: Yeah, I don't know. [SPEAKER_03]: That's because it's very like this is American policy, right? [SPEAKER_03]: Folks, the holidays are around the corner. [SPEAKER_03]: I have a young child in my house. [SPEAKER_03]: The last thing I have time for is cooking every night.

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[SPEAKER_03]: Oh, Jeff. [SPEAKER_03]: Case number two in our double-header, Roni B, are both said the Konya. [SPEAKER_03]: This case is about what's called mandatory detention. [SPEAKER_03]: Immigration law says that anyone who enters the country without being admitted must be detained without bond until their removal proceeding.

[SPEAKER_03]: Until recently, this law was only applied to new arrivals in the country, someone who tries to cross the border and is detained, for example. [SPEAKER_03]: The Trump administration has started to apply it to anyone who arrived in the country without being formally admitted, meaning that if you entered the country illegally years ago, the Trump administration is claiming they can detain you without bot.

[SPEAKER_00]: This one, another Trump administration policy put in effect implemented last year. [SPEAKER_00]: This one about mandatory detention of migrants. [SPEAKER_00]: So another section of immigration law. [SPEAKER_00]: We're talking about a different one in this case. [SPEAKER_00]: Another section of immigration law lays out like removal proceedings and detention, pending removal proceedings.

[SPEAKER_00]: access to bond while you're detained so you can be out of detention during the dependency of immigration or removal proceedings. [SPEAKER_00]: So this provision of immigration law says that non-citizens quote shall be detained for removal proceedings. [SPEAKER_00]: If the examining immigration officer determines that the non-citizen is not clearly and beyond a doubt entitled to be admitted to the United States.

[SPEAKER_00]: note here mandatory detention, the nonsense and shall be detained. [SPEAKER_00]: But until last year, the US government like didn't apply this provision to nonsense and who had already entered the United States. [SPEAKER_00]: And you know, maybe have spent years or even decades here. [SPEAKER_00]: For those people, the government applied this different provision of the law about detention, which gives the government power discretion to release those people on bond during removal proceedings.

[SPEAKER_00]: If you're already here, you didn't get detained at the border or very close to the time that you cross the border. [SPEAKER_00]: the U.S. government generally said you have access to bond if you are put in removal proceedings and detained you can pay a bond you can get out while your removal proceedings are happening.

[SPEAKER_00]: So with this policy implemented last year by the Trump administration and anybody who entered without inspection. [SPEAKER_00]: has to be detained. [SPEAKER_00]: We're talking mandatory detention without access to bond or due process regardless of how long they've lived in the country or their ties to family and community here in the U.S. Politico just in terms of this policy being challenge in the courts.

[SPEAKER_00]: Politico says that federal district judges have delivered more than 9,300 rulings against the administration's mandatory detention guidelines. [SPEAKER_00]: Since they were put in place last year, the ACLU is a big organization out front like bringing in this case to the Supreme Court. [SPEAKER_00]: And they're saying like if this is allowed to proceed by the Supreme Court, then we're talking about millions of people will be subject to mandatory detention without access to bond hearings.

[SPEAKER_00]: So specifically in this case, for example, the name to plaintiff Mr. Barbosa de Cunia. [SPEAKER_00]: He's a Brazilian national. [SPEAKER_00]: He has been living in the United States for the last 22 years. [SPEAKER_00]: He's a small business owner. [SPEAKER_00]: He has no criminal history.

[SPEAKER_00]: He has US citizen family members. [SPEAKER_00]: He has never missed an immigration appointment or a hearing. [SPEAKER_00]: He has now in detention, subject to mandatory detention while the government tries to remove him from the United States. [SPEAKER_00]: And if the Supreme Court Green lights this, then it's millions of people who are subject [SPEAKER_00]: disappearing.

[SPEAKER_03]: So let's talk about the law. [SPEAKER_03]: Let's imagine that this isn't terribly cruel as a matter of like sort of obvious fact. [SPEAKER_03]: And just think, what is the law set about the administration's ability to do this? [SPEAKER_03]: The statute in question here says that aliens not admitted into the United States must be detained without bond if an immigration officer determines they are not clearly entitled to enter the country.

[SPEAKER_03]: On its face, you might look at that in isolation and think, well, then does the Trump administration have a point, do they have the power to do this? [SPEAKER_03]: Is it in fact mandatory that they do this? [SPEAKER_03]: It says that they must be detained. [SPEAKER_03]: The thing is that there's another provision of the statute that says an alien who is arrested and detained is eligible for bond.

[SPEAKER_03]: So, which is it? [SPEAKER_03]: Is it mandatory under the law to detain them without bond or are they eligible for bond? [SPEAKER_03]: On the surface, these provisions sort of contradict, but the second circuit, when they look at this, said, look, it's clear from the context of the first provision, which requires that aliens be detained without bond, it's for newly arriving immigrants.

[SPEAKER_00]: Yeah. [SPEAKER_03]: And the other provision applies to immigrants like Barbosa de Cunia, who have lived here for a long time, or are already existing in the United States as in some form. [SPEAKER_03]: So the Trump administration is not really rigidly applying the law. [SPEAKER_03]: What they're doing is ignoring one part of the law while rigidly enforcing the other part of the law.

[SPEAKER_01]: Yeah. [SPEAKER_03]: So I think they're getting it wrong as a matter of statutory interpretation. [SPEAKER_03]: It's not just like, this isn't a situation where they're just doing a really aggressive interpretation of the statute. [SPEAKER_03]: They're ignoring the statute in part. [SPEAKER_03]: They're just, right, enforcing the parts they like.

[SPEAKER_03]: And then, [SPEAKER_03]: It should sort of go without saying there are constitutional issues running through this, right? [SPEAKER_03]: There are process concerns. [SPEAKER_03]: You have people who have been living in this country for decades to whom the Constitution unquestionably applies.

[SPEAKER_03]: Yes. [SPEAKER_03]: And you're just holding them without bond. [SPEAKER_03]: for extremely long periods of time and you have to imagine it would get longer if the government is allowed to let this policy perpetuate because they're going to bring more people into the system, which will grind to the gears of the system to a halt.

[SPEAKER_00]: Yeah, because of the influx. [SPEAKER_03]: You could have a situation where people are waiting years without bond, right? [SPEAKER_03]: People who are ostensibly protected by the Constitution, [SPEAKER_03]: Clear due process violations there. [SPEAKER_03]: I mean, it's like not even I don't like I don't really want to discuss it.

[SPEAKER_03]: Like I if that's just that doesn't violate due process and what the fuck does right. [SPEAKER_01]: Yeah, exactly. [SPEAKER_01]: In definite attention is so like disfavor by the constitution. [SPEAKER_03]: It's something that, like, in the context of, like, the world wars was not, like, 100% clear.

[SPEAKER_01]: Yeah. [SPEAKER_01]: Fabius Corpus is in article one. [SPEAKER_01]: Right. [SPEAKER_01]: You can't just detain people forever. [SPEAKER_01]: In article one, not in any of the bill of rights, not in any amendment. [SPEAKER_01]: Whatever. [SPEAKER_01]: It's right fucking there, like you have a right to petition to get yourself out of detachment.

[SPEAKER_01]: You can't just be detained indefinitely for no reason. [SPEAKER_01]: It's like a core constitutional principle. [SPEAKER_03]: There's some obvious threads tying these cases together. [SPEAKER_03]: We wanted to talk about them, even though they will both be resolved this term, because first of all, I think it's important to keep your head above water on some of this shit.

[SPEAKER_03]: And they feel like they flow out of the same basic policy. [SPEAKER_03]: which is just the emissaration policy. [SPEAKER_03]: We're going to make it a miserable, painful experience to be an immigrant in this country in order to dissuade people from coming here. [SPEAKER_03]: It does appear to be working.

[SPEAKER_03]: I mean, immigration numbers are down people across the world. [SPEAKER_03]: have a sense of this, even basic tourism is down, right? [SPEAKER_03]: People are concerned about coming here and having their life-off ended by some not job eye-sophicir, which is a valid concern. [SPEAKER_03]: These policies feel like they are not entirely intended to accomplish anything specifically as much as they are, like, a message to the rest of the world.

[SPEAKER_03]: What this means for like, if a Democrat gets the reins in the next five years in 2028 or even in 2032 or whatever, it's not just like over undoing this policy because if you were a person who wants to move to America from the other side of the world. [SPEAKER_03]: You know, fucking John Ossoff telling you, hey, no, we're nice now.

[SPEAKER_00]: Yeah. [SPEAKER_03]: Right not be valid assurance if you think, well, what if in 2032 Donald Trump Jr. comes into office? [SPEAKER_01]: What if C. and Miller just run some self? [SPEAKER_03]: Well, we're someone with charisma, perhaps. [SPEAKER_03]: So in the coming years, we're going to be talking about undoing this, and it's not just going to be like executive orders saying we're not doing this anymore.

[SPEAKER_03]: This is why you need to like abolish eyes, not just as a matter of morality, but also like functional systemic integrity. [SPEAKER_03]: Yeah. [SPEAKER_03]: There needs to be a signal. [SPEAKER_03]: to people in America and the rest of the world that like we're making systemic changes. [SPEAKER_00]: Yeah.

[SPEAKER_00]: Yeah. [SPEAKER_03]: Even if you're putting the morality aside, what's happening to these people, and you're just being like a shallow, kneel liberal who's worried about like the markets or something. [SPEAKER_03]: Yeah. [SPEAKER_03]: Yeah. [SPEAKER_03]: You want this to continue to be a country that people come to when they want to work, when they want to, you know, provide for their families.

[SPEAKER_03]: If you want this to be a place where we do cutting edge research and shit like that, then you need to signal to the rest of the world. [SPEAKER_03]: Not only are we undoing this, but like it won't return. [SPEAKER_03]: You're not going to do that with like tick-y-tack little fucking changes and a few executive orders.

[SPEAKER_00]: There's like a systemic permission that's given, right? [SPEAKER_00]: Like if they push the ceiling on cruelty this much as ICE, as DHS, as the Trump administration, you can't just like then try to impose like a lower ceiling. [SPEAKER_00]: The ceiling is the ceiling, like we've seen how far it goes.

[SPEAKER_00]: And they're going to push it as far as they can. [SPEAKER_00]: And so this, you know, kind of a temporary stop gap or a temporary, you know, bumps in the road. [SPEAKER_03]: Yeah, yeah, which we're doing trainings for ice like this. [SPEAKER_00]: Yeah, that's not going to actually solve the problem, which also makes me think about Supreme Court's role in this.

[SPEAKER_00]: I think we talked on the term preview episode as well about how Like there wasn't like a big theme that screamed out at us from the upcoming term docket. [SPEAKER_00]: But I think actually what you see already forming. [SPEAKER_00]: And in the past year, since these immigration policies have been enacted is the Supreme Court on the shadow docket, and now substantively and on the merits docket, now taking up these immigration cases, which I think will be like a defining hallmark.

[SPEAKER_00]: Let's say of this Supreme Court term. [SPEAKER_00]: and how the Supreme Court aligns legally or what the Supreme Court says immigration law says that allows Trump to continue to enact policies like this. [SPEAKER_03]: There was an advisory opinions from last week titled Not a Maga Court, and it was David French and Ali Honig who's CNN and Steve Flegel, Adelist, and is an all-time schmuck [SPEAKER_03]: Yeah.

[SPEAKER_03]: I was like, I'm going to do my my diligence and listen to this so that I can discuss it on the podcast. [SPEAKER_03]: And then I listened to the first 15 minutes of it. [SPEAKER_03]: I thought I was going to have a fucking aneurysm and they had even gotten to the part that I was like trying to find.

[SPEAKER_03]: I put it aside for God. [SPEAKER_00]: Yeah. [SPEAKER_03]: Well that's what I do for the listeners. [SPEAKER_03]: I just want to put it out there. [SPEAKER_03]: I'm out here listening to advisory opinions. [SPEAKER_03]: Yeah. [SPEAKER_01]: I do want to take a moment to just like put both these cases in the context and especially the indefinite detention case and the context of like the mass deportation program a little bit.

[SPEAKER_01]: Yeah. [SPEAKER_01]: During Trump's, you know, 2024 campaign we talked about there aren't, you know, he promised 20 million deportations or whatever and we said there [SPEAKER_01]: And we said there would be inevitably a campaign of ethnic cleansing, if you tried to enact that, that there would be lawful permanent residents in citizens swept up in it.

[SPEAKER_01]: And I think what we've seen is exactly that. [SPEAKER_01]: There have been lawful permanent residents swept up. [SPEAKER_01]: There have been citizens swept up. [SPEAKER_01]: There have been efforts to take people who are here legally and turn them into [SPEAKER_01]: undocumented people by rushing their hearings and things like that and essentially kicking them out of legal status with onerous requirements so that they can be deported.

[SPEAKER_03]: I mean, that's a huge part of the policy with respect for example, Haitians, right? [SPEAKER_03]: We were talking about EPS. [SPEAKER_01]: Oh, yeah, with TPS removal, yeah. [SPEAKER_01]: we talked about how this couldn't be done without lots of detention because you just can't deport that many people that fast and you already see that with like the efforts to build a massive concentration camp at Fort Blitz $1.2 billion they're sinking into that with the hopes that it's done by September of next year efforts to do that to build similar things in North Carolina and elsewhere.

[SPEAKER_01]: indefinitely the tension just feels like the next step down the road like we're rounding up as many people as we can whether or not they are actually undocumented we'll sort it out later we're sending people to third countries if we can we're sending them home otherwise or we're just holding them right the next step is we'll just round people up and throw them in camps and worry about.

[SPEAKER_01]: deportations later. [SPEAKER_01]: That's what Kumya Barbosa de Kumya is about. [SPEAKER_01]: And if you can just do a little like thought experiment about letting this run, if you just let this run for like six years, right? [SPEAKER_01]: Let's say Trump remains an office or Trump junior or bands or whoever gets the next term and keeps Steven Millenir place.

[SPEAKER_01]: What does this look like six years from now? [SPEAKER_01]: You're talking about [SPEAKER_01]: in concentration camps and a discussion about what to do with them. [SPEAKER_01]: What do we can't deport them all? [SPEAKER_01]: There's just nobody who's going to take them. [SPEAKER_01]: This is legitimately the same arc as the Holocaust.

[SPEAKER_01]: Like I don't say that like lightly and I don't say that. [SPEAKER_01]: to be dramatic like this is it's legitimately what it is. [SPEAKER_01]: We're just like moving step by step down the same path and it's a fucking five alarm fire and it should be very concerning with the Supreme Court seems poised to rubber stamp, you know, the next little step down that road.

[SPEAKER_01]: which is I also think why Peter's exactly right that like the next democratic Congress, the next democratic president or whatever. [SPEAKER_01]: It's just not enough to play bipartisan footsie with Trump on ice funding. [SPEAKER_01]: It's not enough to have a nicer, kinder, gentler, ice deportation program for few years.

[SPEAKER_01]: Like it's just not good enough. [SPEAKER_01]: It's not good enough to keep the warm machine humming to keep the engine warm for the next fucking neoconferter Nazi freak to take charge of and think about how they are ruling they're sort of using fear and uncertainty to their advantage not just directed at [SPEAKER_03]: immigrants but also at like other countries right if you don't cooperate with our third country removal policy.

[SPEAKER_03]: Maybe we squeeze your economy. [SPEAKER_03]: That sort of thing needs to be counterbalanced with actual punishments for bad actors. [SPEAKER_03]: There needs to be a counter-vailing fear. [SPEAKER_03]: You want to join us? [SPEAKER_03]: Fine. [SPEAKER_03]: Enjoy the next couple of years of committing crimes without consequence because a couple years after that, there's gonna be trials.

[SPEAKER_03]: We're gonna run you through the fucking ringer. [SPEAKER_03]: We're gonna look at everything you've ever done. [SPEAKER_03]: and find any excuse to throw you in a front of a judge. [SPEAKER_03]: That sort of shit needs to be happening because without the promise of like retribution of consequences, everyone watching knows that it can happen again.

[SPEAKER_00]: Yeah, and it's not just this cruelty being dulled out on immigrants in these direct policy ways in terms of the policies that now apply to immigrants in the United States, but also this oppression, this cruelty, is dulled out in a different kind of like background way, which is squeezing and pressuring immigration lawyers.

[SPEAKER_00]: and immigrant rights groups that provide legal assistance to immigrants. [SPEAKER_00]: The Trump administration also sort of has attacked those kinds of groups and the practice of immigration law for the past year as well. [SPEAKER_00]: And you see that where some of these immigration non-profit legal organizations are at mere breaking points.

[SPEAKER_00]: If not, have really, really had to downsize. [SPEAKER_00]: You know, I think the Trump administration withdrew something like $200 million of federal funding that went to support the representation of migrant children last year. [SPEAKER_00]: You know, this is a huge amount of money obviously and this means that literally immigration organizations have had to close their doors.

[SPEAKER_00]: There's also waves all of these policies that makes it very difficult for immigration attorneys to take certain cases. [SPEAKER_00]: And also, you know, just in the systemic grind, I know we were talking about this during prep, but, you know, this obviously fell on immigrants and their families, but it made it very, very difficult for attorneys too.

[SPEAKER_00]: I think it was like last week or maybe two weeks ago that ice just shut down the online system that tracks where detained immigrants are, [SPEAKER_00]: like you could look up online what detention facility your family member, your detained family member or your client was at and then all of the sudden you couldn't.

[SPEAKER_00]: The system just was taken offline and so you know there's all of these like systemic pressure points. [SPEAKER_00]: where not only are the policies that are being enacted, obviously, you know, the cruelty, it's the point, all of that kind of thing, but it's like every aspect, even the only resource that you might have, which is like a connection to an immigration attorney, their jobs are literally harder.

[SPEAKER_00]: And like impossible, impossible, you know, these things that like we talked about like I have immigration attorney friends We know immigration attorneys like people I know they say like this four-year-old was put on a plant I didn't know and she was deported right like I am the attorney.

[SPEAKER_00]: She has an attorney this child has an attorney [SPEAKER_00]: right or you know just all of these things like the family couldn't find that we couldn't find them and then we realized that they had been flown to another detention facility across the country you know and so it's like even if you did have a legal route even if you did want to fight your case from detention you know even like every aspect of your lawyers job is now harder [SPEAKER_03]: You can see this in other contexts, to where the sort of emisseration of liberal civil society is part of the goal.

[SPEAKER_03]: Immigration of attorneys, yes, like scientists, right, research-dependent scientists, right, like the civil service more broadly. [SPEAKER_03]: Like the goal is to create instability in these fears to make it less enticing. [SPEAKER_00]: Yeah. [SPEAKER_03]: For everyone. [SPEAKER_03]: That's express.

[SPEAKER_03]: Right. [SPEAKER_03]: You can see that in a lot of the writing in and around project 25. [SPEAKER_03]: The whole point is that if you wanted to go into a career. [SPEAKER_03]: Either public service or something adjacent to it where your goals are sort of progressive in nature. [SPEAKER_03]: They want to make that unpleasant.

[SPEAKER_03]: They want to make that a bad career decision more than it already was for the case of like. [SPEAKER_03]: immigration lawyers where it's already a tough fucking job, you know, yeah, they want to make that a miserable career decision. [SPEAKER_03]: They want to push you away. [SPEAKER_03]: That's sort of like the scale of what we're dealing with here, and yeah, I don't know.

[SPEAKER_03]: You don't always circle back to like, and so we've got to only do something, but you know what I think of like. [SPEAKER_03]: solutions when I'm thinking, how do you get out of this? [SPEAKER_03]: In the case of like the defending of science, it's like, well, how do you get out of that?

[SPEAKER_03]: You dump three times the previous budget into it, right? [SPEAKER_03]: You say, yeah, we're going to scrape a little bit out of a fucking ice's budget or whatever. [SPEAKER_03]: And we're going to pour it onto science. [SPEAKER_03]: You take a slice of the budget, a few billion bucks, you dump it into due process for immigrants, right?

[SPEAKER_03]: Yeah. [SPEAKER_03]: Like, shit like that needs to be done. [SPEAKER_03]: It can't just be that we, you click undo. [SPEAKER_03]: And you're like, who? [SPEAKER_03]: That was close. [SPEAKER_03]: Almost, almost did a Hitler. [SPEAKER_00]: Exactly. [SPEAKER_00]: Exactly. [SPEAKER_00]: And maybe just like my final thought is like, the systemic solutions we're talking about, like that require some creativity.

[SPEAKER_00]: There needs to be some creative systemic solutions applied [SPEAKER_01]: That's right. [SPEAKER_03]: Next week, we're talking about something that's been in the news. [SPEAKER_03]: The proposed public execution of Nadal Hassan, the port birth shooter. [SPEAKER_03]: We're going to be talking about the history of public execution.

[SPEAKER_03]: We're going to be talking about the botched execution of Christophe Pike. [SPEAKER_03]: And the just sort of spectacle of cruelty that the administration is putting on display with a shit. [SPEAKER_03]: Follow us on social media at five four pods, subscribe to our patreon patreon.com slash five four pod all spelled out or access to premium and ad free episodes, special events on our Slack or sorts of shit.

[SPEAKER_01]: See you next week. [SPEAKER_01]: Bye, everybody. [SPEAKER_01]: Five to four is presented by prologue projects. [SPEAKER_01]: This episode was produced by Allison Rogers. [SPEAKER_01]: The onafoque provides editorial support. [SPEAKER_01]: Our website was designed by Keter Murphy. [SPEAKER_01]: Our artwork is by Teddy Blanks at Ships and Y.

[SPEAKER_01]: And our theme song is by Spatial Relations.

Department of Homeland Security v. D.V.D. (and Rhoney v. Barbosa de Cunha)

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