Can the government send you to a foreign prison without giving you any way to say, "You've got the wrong person"? In this companion episode to their Matthews v. Eldridge discussion, Gwen and Marc apply the due process framework to three developments unfolding in real time: the administration's use of the 1798 Alien Enemies Act to deport Venezuelan nationals without individualized hearings, the Abrego Garcia case — where a man with a court order protecting him ended up in the exact prison an immigration judge said he couldn't be sent to — and a new rule that would have made meaningful immigration appeals nearly impossible before a federal court blocked it. They run the Matthews factors on each, showing how a Bloomberg investigation found roughly 90% of those deported had no criminal record, why the government's "administrative error" defense proves the need for pre-removal checkpoints, and what happens when the government acts first and argues courts can't fix it later. This episode isn't about whether borders should be secure or whether gangs are dangerous — it's about the constitutional principle, enshrined before the Bill of Rights even existed, that the government must let you challenge your detention. Because when that breaks down, it doesn't just affect the people in custody. It threatens the structure that protects everyone.
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:52 this series. Mark, this is going to be a companion
00:00:52 --> 00:00:54 episode to the Matthews v. Eldridge episode.
00:00:55 --> 00:00:56 We normally try and keep those main episodes
00:00:56 --> 00:00:59 pretty timeless. We want them to hold up years
00:00:59 --> 00:01:01 from now. But what's happening right now in immigration
00:01:01 --> 00:01:05 is probably the most possible vivid illustration
00:01:05 --> 00:01:07 of the due process framework that we could use.
00:01:07 --> 00:01:10 And it would also just be irresponsible to not
00:01:10 --> 00:01:12 talk about it. Yeah, everything we've discussed,
00:01:12 --> 00:01:15 what's at stake, how likely mistakes are, what
00:01:15 --> 00:01:17 the additional processes cost, it's really playing
00:01:17 --> 00:01:20 out right before us in real time. And I want
00:01:20 --> 00:01:22 to be clear about what this episode is and isn't.
00:01:22 --> 00:01:24 This is not about whether the government should
00:01:24 --> 00:01:27 deport people. It's not about whether borders
00:01:27 --> 00:01:29 should be secure. It's also not about whether
00:01:29 --> 00:01:32 gangs are dangerous. Yeah, those are policy questions
00:01:32 --> 00:01:34 that the government takes up in different forms
00:01:34 --> 00:01:37 and different ways that impact administrative
00:01:37 --> 00:01:40 law, but they are not the things that we are
00:01:40 --> 00:01:42 dealing with today. Right. And reasonable people
00:01:42 --> 00:01:45 disagree on them. So what we're talking about
00:01:45 --> 00:01:47 today is something different, something that
00:01:47 --> 00:01:49 really shouldn't be controversial at all. Can
00:01:49 --> 00:01:51 the government lock you up or send you to a foreign
00:01:51 --> 00:01:53 prison without giving you any way to say you've
00:01:53 --> 00:01:56 got the wrong person? That's not a left right
00:01:56 --> 00:01:59 political question. It really isn't. The right
00:01:59 --> 00:02:00 to challenge your detention is one of the oldest
00:02:00 --> 00:02:03 protections in the English speaking world. It
00:02:03 --> 00:02:05 predates the Constitution. It predates the country.
00:02:06 --> 00:02:08 And when that right breaks down, it doesn't just
00:02:08 --> 00:02:10 affect the people being detained. It threatens
00:02:10 --> 00:02:13 the structure that. protects everyone. Okay,
00:02:14 --> 00:02:16 let's start with the basics. Why is the ability
00:02:16 --> 00:02:18 to challenge government detention so fundamental?
00:02:19 --> 00:02:21 Without that, every other right is meaningless.
00:02:22 --> 00:02:24 Explain that. Okay, you have the right to free
00:02:24 --> 00:02:26 speech. You have the right to due process. You
00:02:26 --> 00:02:28 have the right to counsel. You have the right
00:02:28 --> 00:02:30 to not be deprived of liberty without due process
00:02:30 --> 00:02:33 of law. Great. But if the government can put
00:02:33 --> 00:02:35 you in a cell and there's no mechanism at all
00:02:35 --> 00:02:37 for you to go before a neutral decision maker
00:02:37 --> 00:02:40 and say, this is wrong and here's why, then all
00:02:40 --> 00:02:42 of those rights are just words. Yeah. In the
00:02:42 --> 00:02:45 government speak, this is habeas corpus. Yes.
00:02:45 --> 00:02:47 This is the great writ. And it's worth noting
00:02:47 --> 00:02:49 that the original version of the Constitution,
00:02:50 --> 00:02:52 without the Bill of Rights, just the plain Constitution
00:02:52 --> 00:02:55 itself, explicitly protected habeas corpus. Article
00:02:55 --> 00:02:58 1, Section 9, the privilege of the writ of habeas
00:02:58 --> 00:03:01 corpus shall not be suspended unless when in
00:03:01 --> 00:03:03 cases of rebellion or invasion, the public safety
00:03:03 --> 00:03:05 may require it. Yeah, the founders thought it
00:03:05 --> 00:03:08 was so important they put it in the original
00:03:08 --> 00:03:10 document. Right. They didn't even leave it for
00:03:10 --> 00:03:12 the amendments. They didn't leave it for Congress
00:03:12 --> 00:03:14 to create. They baked it into the structure.
00:03:14 --> 00:03:16 And the reason is simple, that the founders had
00:03:16 --> 00:03:18 direct experience with a government that could
00:03:18 --> 00:03:21 imprison people without judicial review. And
00:03:21 --> 00:03:22 that's what they were rebelling against. Yeah.
00:03:22 --> 00:03:24 So when we talk about the right to challenge.
00:03:24 --> 00:03:27 attention, we're not talking about some modern
00:03:27 --> 00:03:30 progressive invention. Right. We're talking about
00:03:30 --> 00:03:32 something that the English courts had recognized
00:03:32 --> 00:03:35 in the 1600s, that the founders enshrined in
00:03:35 --> 00:03:38 the Constitution in 1787, and that the Supreme
00:03:38 --> 00:03:41 Court has explicitly applied to non -citizens
00:03:41 --> 00:03:44 since at least 1903. Yeah, non -citizens as well,
00:03:44 --> 00:03:47 because the Fifth Amendment doesn't just limit
00:03:47 --> 00:03:50 its application to citizens. It says persons.
00:03:50 --> 00:03:52 Right. No person shall be deprived of life, liberty
00:03:52 --> 00:03:55 or property without due process of law. The Supreme
00:03:55 --> 00:03:57 Court has been completely consistent on this
00:03:57 --> 00:04:00 for over a century. Whatever your views on immigration
00:04:00 --> 00:04:03 policy, the constitutional text is clear. Non
00:04:03 --> 00:04:06 -citizens on U .S. soil are persons. They get
00:04:06 --> 00:04:09 due process. OK, so why does this matter to someone
00:04:09 --> 00:04:11 who isn't a non -citizen? All right, because
00:04:11 --> 00:04:13 the government doesn't always know who somebody
00:04:13 --> 00:04:16 is when they act. The whole point of the right
00:04:16 --> 00:04:18 to challenge is that the government makes mistakes.
00:04:18 --> 00:04:21 It picks up the wrong person. It acts on bad
00:04:21 --> 00:04:23 information. It confuses one name for another.
00:04:23 --> 00:04:26 If the system has no checkpoint, there's no moment
00:04:26 --> 00:04:28 when somebody can say, wait, you have the wrong
00:04:28 --> 00:04:31 person. Then the error becomes the outcome. And
00:04:31 --> 00:04:34 citizens have been caught up in immigration enforcement
00:04:34 --> 00:04:37 actions repeatedly, as we've seen on the news.
00:04:37 --> 00:04:39 Right. They have. It's been documented. And even
00:04:39 --> 00:04:41 setting that aside, the principle that the government
00:04:41 --> 00:04:43 must allow people to challenge their detention
00:04:43 --> 00:04:46 is what prevents every other kind of government
00:04:46 --> 00:04:49 overreach. If you accept that one category of
00:04:49 --> 00:04:51 people can be detained with no ability to contest
00:04:51 --> 00:04:53 it, you've accepted a principle that has no logical
00:04:53 --> 00:04:55 stopping point. Because the limiting principle
00:04:55 --> 00:04:58 is the right to challenge itself. Right. Once
00:04:58 --> 00:05:00 that's gone, the only thing standing between...
00:05:00 --> 00:05:02 anyone an unchallengeable government detention
00:05:02 --> 00:05:05 is the government's promise that it won't happen
00:05:05 --> 00:05:07 to you. And that's not how constitutional rights
00:05:07 --> 00:05:13 work. So let's talk about what's actually happening.
00:05:13 --> 00:05:16 In March 2025, the administration invoked the
00:05:16 --> 00:05:21 Alien Enemies Act, a 1798 wartime statute to
00:05:21 --> 00:05:23 deport Venezuelan nationals to El Salvador's
00:05:23 --> 00:05:27 Seacott prison. The government alleged that these
00:05:27 --> 00:05:29 were members of the gang Tren de Aragua. They
00:05:29 --> 00:05:33 alleged. But without any individualized hearings.
00:05:33 --> 00:05:35 Right. There was no notice that people were being
00:05:35 --> 00:05:37 removed under this specific statute. There was
00:05:37 --> 00:05:39 no opportunity to contest the factual basis that
00:05:39 --> 00:05:42 they weren't actually a member of the gang before
00:05:42 --> 00:05:45 being put on a plane to a foreign prison. OK,
00:05:45 --> 00:05:48 let's run the Matthew factors. First, factor
00:05:48 --> 00:05:51 one, the private interest, physical liberty is
00:05:51 --> 00:05:54 at stake. Not just deportation, but deportation
00:05:54 --> 00:05:56 to what a federal judge has described as one
00:05:56 --> 00:05:58 of the most dangerous prisons in the Western
00:05:58 --> 00:06:01 Hemisphere. That is the highest category of private
00:06:01 --> 00:06:03 interest that the framework recognizes. Right.
00:06:03 --> 00:06:06 Excellent. And factor two. So risk of error.
00:06:06 --> 00:06:09 A Bloomberg investigation found that roughly
00:06:09 --> 00:06:13 90 percent of the Venezuelans deported had absolutely
00:06:13 --> 00:06:16 no U .S. criminal record beyond potentially traffic
00:06:16 --> 00:06:20 or immigration violations. 90 percent. Right.
00:06:20 --> 00:06:22 And if the justification for using a wartime
00:06:22 --> 00:06:25 statute is. supposed gang membership, and 90
00:06:25 --> 00:06:27 % of the people subject to it have no criminal
00:06:27 --> 00:06:30 record, the error rate isn't a marginal concern.
00:06:30 --> 00:06:33 It is a central feature of the system. OK, factor
00:06:33 --> 00:06:35 three. So the government's interest in removing
00:06:35 --> 00:06:38 dangerous gang members. Sure, that's legitimate.
00:06:38 --> 00:06:41 Very few people are pro -dangerous gang members
00:06:41 --> 00:06:43 running rampant in the country. Trend Aragua
00:06:43 --> 00:06:47 is a serious criminal organization. But the Matthews
00:06:47 --> 00:06:49 question isn't whether the interest is real.
00:06:49 --> 00:06:51 It's whether the cost of giving people a chance
00:06:51 --> 00:06:54 to contest their designation is too high relative
00:06:54 --> 00:06:57 to the risk of error. And what was the process
00:06:57 --> 00:06:59 that was being requested? It wasn't a full trial.
00:06:59 --> 00:07:02 No, it wasn't. It's just notice and an opportunity
00:07:02 --> 00:07:04 to be heard before being removed. The chance
00:07:04 --> 00:07:07 to say, I am not who you think I am. And that's
00:07:07 --> 00:07:09 ultimately what the Supreme Court required. Yes,
00:07:09 --> 00:07:12 unanimously. In J .D .G. v. Trump, the court
00:07:12 --> 00:07:15 said that detainees must receive notice that
00:07:15 --> 00:07:17 they're subject to removal under the Alien Enemies
00:07:17 --> 00:07:19 Act, and that notice has to come within a reasonable
00:07:19 --> 00:07:22 time and in a manner that lets them actually
00:07:22 --> 00:07:24 seek habeas relief before being deported. So
00:07:24 --> 00:07:27 notice and an opportunity to be heard, that's
00:07:27 --> 00:07:29 the most basic formulation of due process that
00:07:29 --> 00:07:32 there is. Right. We saw that repeatedly in the
00:07:32 --> 00:07:34 Matthews episode with a bunch of different cases.
00:07:35 --> 00:07:37 And what's remarkable is that this administration
00:07:37 --> 00:07:40 had to be told this by the Supreme Court. The
00:07:40 --> 00:07:42 principle that you have to tell someone why you're
00:07:42 --> 00:07:44 detaining them and give them a chance to respond
00:07:44 --> 00:07:48 is so fundamental, even to non -citizens, that
00:07:48 --> 00:07:50 the court was citing it in 1903. Yeah, and what's
00:07:50 --> 00:07:53 remarkable about this case is that even the dissenters
00:07:53 --> 00:07:55 agreed on this point. Right. So all four dissenters
00:07:55 --> 00:07:57 wrote that if the government removes even one
00:07:57 --> 00:08:00 individual without affording notice and a meaningful
00:08:00 --> 00:08:02 opportunity to seek habeas relief, it violates
00:08:02 --> 00:08:06 the court's order. Nine justices. Zero said the
00:08:06 --> 00:08:08 government can deport people to a foreign prison
00:08:08 --> 00:08:10 without any process at all. But the process the
00:08:10 --> 00:08:13 court required was after detention. Right. So
00:08:13 --> 00:08:15 the court said you need a chance to challenge.
00:08:15 --> 00:08:18 But when we're thinking about habeas corpus,
00:08:18 --> 00:08:20 by definition, that is after you've already been
00:08:20 --> 00:08:23 detained. That's the whole point. explain why
00:08:23 --> 00:08:25 you've detained this person. What the administration
00:08:25 --> 00:08:28 actually provided, according to court filings,
00:08:28 --> 00:08:31 was a one -page form in English informing detainees
00:08:31 --> 00:08:34 that they had then 12 hours to express an intent
00:08:34 --> 00:08:36 to challenge their detention by asking for a
00:08:36 --> 00:08:40 hearing. 12 hours. 12 hours based on a one -page
00:08:40 --> 00:08:43 form in English for people, many of whom won't
00:08:43 --> 00:08:46 speak English, who may not have a lawyer, who
00:08:46 --> 00:08:48 are currently in detention, and probably don't
00:08:48 --> 00:08:51 have a way to contact a lawyer. and file something
00:08:51 --> 00:08:53 with a court that they've never been to. That's
00:08:53 --> 00:08:58 the tornado siren problem. It is. So in that,
00:08:58 --> 00:09:01 the sirens cover such a wide area that they're
00:09:01 --> 00:09:04 not really meaningful information. And in this
00:09:04 --> 00:09:06 case, technically, the system is providing notice.
00:09:06 --> 00:09:09 But the design of the notice makes it functionally
00:09:09 --> 00:09:11 useless for the people it's supposed to protect.
00:09:11 --> 00:09:13 So the question really isn't just whether the
00:09:13 --> 00:09:17 process exists on paper. No, it's whether the
00:09:17 --> 00:09:19 process is designed in a way that lets people
00:09:19 --> 00:09:22 actually use it. Due process that can't be exercised
00:09:22 --> 00:09:24 isn't due process. So then we also have the case
00:09:24 --> 00:09:26 that shows what happens when the system has no
00:09:26 --> 00:09:29 functional checkpoint at all. Come on, Abrego
00:09:29 --> 00:09:31 Garcia. Yeah, this is the case everyone heard
00:09:31 --> 00:09:35 about. Yes, everybody. So Abrego Garcia came
00:09:35 --> 00:09:37 to the U .S. from El Salvador as a teenager in
00:09:37 --> 00:09:42 2011. He was fleeing gang threats. In 2019, an
00:09:42 --> 00:09:44 immigration judge granted him a withholding of
00:09:44 --> 00:09:47 removal. This is legal protection that specifically
00:09:47 --> 00:09:49 prohibited the government from deporting him
00:09:49 --> 00:09:52 to El Salvador because he had already demonstrated
00:09:52 --> 00:09:54 that he was likely to face persecution there.
00:09:54 --> 00:09:57 Yeah, system had already worked. An immigration
00:09:57 --> 00:09:58 judge had heard the evidence. They had applied
00:09:58 --> 00:10:01 the law. They had issued a ruling protecting
00:10:01 --> 00:10:04 him. He had an entitlement to be in the country.
00:10:04 --> 00:10:07 Right. That's the system working as it was designed
00:10:07 --> 00:10:09 to work. There's an adversarial hearing. There's
00:10:09 --> 00:10:12 evidence. There's legal analysis. And we have
00:10:12 --> 00:10:14 a decision with the force of law. Okay, so what
00:10:14 --> 00:10:17 then happened? All right, so March 2025, he's
00:10:17 --> 00:10:19 driving home from work with his son when ICE
00:10:19 --> 00:10:22 arrested him. Three days later, he's on a plane
00:10:22 --> 00:10:25 to Seacott, the El Salvadoran mega prison, the
00:10:25 --> 00:10:27 exact country that the immigration judge had
00:10:27 --> 00:10:30 ordered he not be deported to. Okay, so how does
00:10:30 --> 00:10:32 this happen? We had an ICE official who said
00:10:32 --> 00:10:35 in a sworn affidavit that his protected status
00:10:35 --> 00:10:38 hadn't appeared on the flight manifest. He was
00:10:38 --> 00:10:41 listed as an alternate and took another detainee's
00:10:41 --> 00:10:43 place. So the Justice Department called it just
00:10:43 --> 00:10:46 an administrative error. An administrative error
00:10:46 --> 00:10:48 that sent a man with a court order protecting
00:10:48 --> 00:10:50 him to a foreign prison. And this is the part
00:10:50 --> 00:10:53 that everybody needs to hear. This isn't about
00:10:53 --> 00:10:55 whether he's sympathetic or unsympathetic. It's
00:10:55 --> 00:10:57 not about whether he should have been in the
00:10:57 --> 00:10:59 country in the first place. The government's
00:10:59 --> 00:11:01 own legal system, an immigration judge applying
00:11:01 --> 00:11:04 immigration law through an adversarial process,
00:11:04 --> 00:11:07 has said this man cannot be sent to El Salvador.
00:11:07 --> 00:11:09 And then the government sent him to El Salvador
00:11:09 --> 00:11:12 because there was no checkpoint between the decision
00:11:12 --> 00:11:14 to deport and the plane taking off. Yeah. And
00:11:14 --> 00:11:18 can we talk just for a second about this? In
00:11:18 --> 00:11:22 reality, what the state is doing is putting pressure
00:11:22 --> 00:11:24 on its own administrative system that it's already
00:11:24 --> 00:11:27 worked out all of these questions in advance.
00:11:27 --> 00:11:30 Right. This is what we've seen repeatedly with
00:11:30 --> 00:11:33 this administration, which is ignoring every
00:11:33 --> 00:11:35 sort of procedural safeguard, ignoring everything
00:11:35 --> 00:11:40 that's come before. doing what it wants and basically
00:11:40 --> 00:11:42 asking for forgiveness. So let's talk about factor
00:11:42 --> 00:11:45 two of the Matthews test and how factor two shapes
00:11:45 --> 00:11:48 this outcome. All right. So this is where it's
00:11:48 --> 00:11:51 most concrete. When a system has no meaningful
00:11:51 --> 00:11:53 review before an irreversible action, errors
00:11:53 --> 00:11:56 can't get caught. They become permanent. And
00:11:56 --> 00:11:58 when you're moving fast, when speed is the top
00:11:58 --> 00:12:01 priority and the process is the obstacle to that,
00:12:01 --> 00:12:03 this is what you get. What did the Supreme Court
00:12:03 --> 00:12:06 then say? So again, they're unanimous. They said
00:12:06 --> 00:12:07 the lower court properly required the government
00:12:07 --> 00:12:10 to facilitate his return and ensure his case
00:12:10 --> 00:12:12 was handled as it would have been had he not
00:12:12 --> 00:12:15 been improperly sent to El Salvador. And then
00:12:15 --> 00:12:17 the government argued that it could not comply.
00:12:17 --> 00:12:20 Right. So the administration's position was that
00:12:20 --> 00:12:22 federal courts can't order the executive to conduct
00:12:22 --> 00:12:25 foreign diplomacy, that requiring them to get
00:12:25 --> 00:12:27 him out of a foreign prison would exceed judicial
00:12:27 --> 00:12:30 authority. Ah, so this is where they are now
00:12:30 --> 00:12:32 creating a separation of powers argument. Right.
00:12:32 --> 00:12:35 This is that. asking for forgiveness and saying,
00:12:35 --> 00:12:37 this is no longer a place where you can even
00:12:37 --> 00:12:39 ask for forgiveness because you're intruding
00:12:39 --> 00:12:43 on our area of authority. If we look at what
00:12:43 --> 00:12:45 this actually means in practice, the government
00:12:45 --> 00:12:47 deports someone in violation of a court order.
00:12:47 --> 00:12:49 Then it argues that because the person is now
00:12:49 --> 00:12:52 abroad, courts can't order the fix. So the violation
00:12:52 --> 00:12:55 becomes its own shield. Yeah, the remedy disappears
00:12:55 --> 00:12:58 because the government moved fast enough to make
00:12:58 --> 00:13:00 it disappear. Right. Justice Sotomayor put it
00:13:00 --> 00:13:02 plainly. The government's argument implies it
00:13:02 --> 00:13:05 could deport and incarcerate any person, including
00:13:05 --> 00:13:07 U .S. citizens, without legal consequence, so
00:13:07 --> 00:13:09 long as it does so before a court can intervene.
00:13:10 --> 00:13:13 Any person. Right. Any person, including citizens.
00:13:13 --> 00:13:15 This is not a hypothetical design to scare people.
00:13:15 --> 00:13:18 It is the logical endpoint of a principle that
00:13:18 --> 00:13:20 says once someone is outside of the country,
00:13:20 --> 00:13:22 courts have no power. And that's why the right
00:13:22 --> 00:13:24 to challenge detention before removal matters.
00:13:25 --> 00:13:27 And why it matters so much. It's not as a favor
00:13:27 --> 00:13:30 to the detainee. It is a structural requirement
00:13:30 --> 00:13:33 of the system. If the only time you can challenge
00:13:33 --> 00:13:35 the government's action is after it's already
00:13:35 --> 00:13:37 irreversible, you don't have a right at all.
00:13:37 --> 00:13:39 Yeah. Habeas corpus does not work in retrospect.
00:13:40 --> 00:13:42 Right. It is supposed to work before the harm
00:13:42 --> 00:13:45 is done. That is the entire point. So he was
00:13:45 --> 00:13:47 eventually brought back to the U .S., but only
00:13:47 --> 00:13:49 after the government indicted him on separate
00:13:49 --> 00:13:51 charges, not because it complied with the Supreme
00:13:51 --> 00:13:55 Court's order to facilitate his return. But he's
00:13:55 --> 00:13:57 since been released on bail and returned to Maryland.
00:13:57 --> 00:13:59 But for three months, a man with a court order
00:13:59 --> 00:14:02 protecting him sat in a foreign prison because
00:14:02 --> 00:14:04 the system had no mechanism to prevent the error
00:14:04 --> 00:14:06 and the government argued courts couldn't fix
00:14:06 --> 00:14:09 it. What we've talked about so far is what happens
00:14:09 --> 00:14:11 when existing process gets bypassed. But there's
00:14:11 --> 00:14:14 also something happening right now that's about
00:14:14 --> 00:14:16 redesigning the process itself, making the system
00:14:16 --> 00:14:19 have less ability to catch errors by design.
00:14:19 --> 00:14:20 So you're talking about the Board of Immigration
00:14:20 --> 00:14:22 Appeals? Right. So in February of this year,
00:14:23 --> 00:14:25 the Department of Justice issued an interim final
00:14:25 --> 00:14:29 rule that fundamentally restructures how immigration
00:14:29 --> 00:14:32 appeals work. There are three big changes. First,
00:14:32 --> 00:14:34 it kept the time to file a notice of appeal from
00:14:34 --> 00:14:38 30 days to 10. Yeah. And for people who may be
00:14:38 --> 00:14:41 detained that may not speak English or may not
00:14:41 --> 00:14:44 have a lawyer. Right. And it made summary dismissal
00:14:44 --> 00:14:47 the default outcome. Unless a majority of the
00:14:47 --> 00:14:49 permanent board members vote within 10 days to
00:14:49 --> 00:14:51 accept a case for a merits review, the appeal
00:14:51 --> 00:14:54 is automatically dismissed. So before transcripts
00:14:54 --> 00:14:56 are even created. Right. This is before they
00:14:56 --> 00:14:58 exist, before the record is transmitted. The
00:14:58 --> 00:15:00 board would have to decide whether to hear your
00:15:00 --> 00:15:02 appeal before it can even read what happened
00:15:02 --> 00:15:04 in your case. That's not appellate review. That's
00:15:04 --> 00:15:07 appellate screening designed to reject cases.
00:15:07 --> 00:15:10 Right. Exactly. And third, they were requiring
00:15:10 --> 00:15:13 simultaneous briefing that both sides had to
00:15:13 --> 00:15:16 file within 20 days. Reply briefs were essentially
00:15:16 --> 00:15:18 eliminated. The government justified this by
00:15:18 --> 00:15:20 pointing to a backlog of over 200 pending
00:15:20 --> 00:15:24 appeals. And to be fair, that backlog is real.
00:15:24 --> 00:15:27 No, it definitely is. 200 pending cases
00:15:27 --> 00:15:30 is a system in crisis. But the Matthews question
00:15:30 --> 00:15:32 is whether the solution addresses the problem
00:15:32 --> 00:15:35 without creating a worse one. Yes. Let's run
00:15:35 --> 00:15:37 these factors. All right. Factor one, the people
00:15:37 --> 00:15:40 appealing immigration decisions are facing deportation.
00:15:40 --> 00:15:42 many of them to countries where they've alleged
00:15:42 --> 00:15:45 that they would face persecution or death. The
00:15:45 --> 00:15:46 private interest is at the top of this fail.
00:15:46 --> 00:15:49 Factor two. This is where it gets really damning.
00:15:49 --> 00:15:52 The BIA exists to catch errors immigration judges
00:15:52 --> 00:15:55 make. Every adjudication system is going to make
00:15:55 --> 00:15:57 errors. That's why we have this appellate process
00:15:57 --> 00:16:01 in place. If you make meaningful review functionally
00:16:01 --> 00:16:04 impossible, you will lock in every mistake. In
00:16:04 --> 00:16:06 immigration, a locked -in mistake can mean sending
00:16:06 --> 00:16:08 someone back to a country where they're killed.
00:16:09 --> 00:16:11 And the government's own numbers are interesting
00:16:11 --> 00:16:14 here. They have said that 123 out of over 55
00:16:14 --> 00:16:17 appeals were sustained on the merits between
00:16:17 --> 00:16:21 2023 and 2025. Yes. So they tried to use this
00:16:21 --> 00:16:23 to argue that appeals are pointless. But think
00:16:23 --> 00:16:26 about what that actually already means. If the
00:16:26 --> 00:16:29 system already sustains very few appeals, the
00:16:29 --> 00:16:32 backlog isn't caused by extensive merits review.
00:16:32 --> 00:16:34 It's caused by volume. And the solution to a
00:16:34 --> 00:16:37 volume problem is resources, not eliminating
00:16:37 --> 00:16:41 the ability to appeal. OK, factor three. All
00:16:41 --> 00:16:44 right. This is the government's interest. And
00:16:44 --> 00:16:46 here they have a legitimate interest in trying
00:16:46 --> 00:16:49 to manage the caseload. But this cost of maintaining
00:16:49 --> 00:16:53 it isn't just being measured against the convenience
00:16:53 --> 00:16:55 of the government. It's measured against the
00:16:55 --> 00:16:57 risk of deporting people who have a valid legal
00:16:57 --> 00:17:00 claim to stay. OK, so then what happened with
00:17:00 --> 00:17:02 the rule? A bunch of legal service organizations
00:17:02 --> 00:17:05 sued. And one day before the rule was supposed
00:17:05 --> 00:17:07 to take effect, a federal judge in D .C. blocked
00:17:07 --> 00:17:10 the key provisions. The court vacated the default
00:17:10 --> 00:17:13 summary dismissal framework and the reduction
00:17:13 --> 00:17:15 for 30 to 10 days. And the provision treating
00:17:15 --> 00:17:17 issues not raised in the notice of appeal is
00:17:17 --> 00:17:19 waived. What were the grounds the court looked
00:17:19 --> 00:17:22 to? So this rule is issued without notice and
00:17:22 --> 00:17:24 comment. The government invoked a foreign affairs
00:17:24 --> 00:17:26 exception to try and skip the normal rulemaking
00:17:26 --> 00:17:29 process. And the plaintiffs argue that this violated
00:17:29 --> 00:17:31 the Fifth Amendment's due process protection.
00:17:31 --> 00:17:34 The litigation is ongoing, but at least for now,
00:17:34 --> 00:17:35 the most aggressive parts can't be enforced.
00:17:36 --> 00:17:38 So the system then caught it. The system caught
00:17:38 --> 00:17:41 it this time, and a court intervened. Again,
00:17:42 --> 00:17:43 we have this pattern. The government designs
00:17:43 --> 00:17:45 a process to make it functionally impossible
00:17:45 --> 00:17:48 for people to challenge errors, and courts have
00:17:48 --> 00:17:50 to step in and say no. That's the pattern with
00:17:50 --> 00:17:53 the Alien Enemies Act deportations. That's the
00:17:53 --> 00:17:55 pattern with Albrego Garcia. That's the pattern
00:17:55 --> 00:17:57 with the BIA rule. The government acts first,
00:17:57 --> 00:17:59 and courts have to clean it up. And that inversion
00:17:59 --> 00:18:02 is the problem. Due process is supposed to work
00:18:02 --> 00:18:05 the other way. Process first, then action. When
00:18:05 --> 00:18:07 the government consistently acts first and litigates
00:18:07 --> 00:18:10 later, people who can't access the courts fast
00:18:10 --> 00:18:11 enough get no protection. I want to come back
00:18:11 --> 00:18:13 to something you said at the top, that this isn't
00:18:13 --> 00:18:16 a political question. It isn't. So I realize
00:18:16 --> 00:18:18 that saying this isn't political about immigration
00:18:18 --> 00:18:21 right now sounds naive. Everything about immigration
00:18:21 --> 00:18:23 is politically charged right now. But the right
00:18:23 --> 00:18:25 to challenge your detention by the government
00:18:25 --> 00:18:28 is not a policy preference. It is the foundation
00:18:28 --> 00:18:30 the rest of the system is built on. Yeah. The
00:18:30 --> 00:18:33 founders put habeas corpus in the original Constitution,
00:18:34 --> 00:18:37 not on accident. Right. And this is before we
00:18:37 --> 00:18:40 have any amendments. before anything in the Bill
00:18:40 --> 00:18:43 of Rights because, again, they understood that
00:18:43 --> 00:18:45 everything else is going to depend on this right.
00:18:45 --> 00:18:48 If the government can hold you without any process
00:18:48 --> 00:18:50 for contesting that, it doesn't matter what other
00:18:50 --> 00:18:53 rights you have. You can't exercise them. And
00:18:53 --> 00:18:55 that principle doesn't depend on who's in the
00:18:55 --> 00:18:57 cell. Right. And this is the hard part for people.
00:18:57 --> 00:18:59 It's easy to support due process for people you
00:18:59 --> 00:19:02 sympathize with. It's harder when the government
00:19:02 --> 00:19:04 says the person is a gang member or a terrorist.
00:19:04 --> 00:19:06 But that's the whole reason that we need this
00:19:06 --> 00:19:09 process in place. Cases where the government
00:19:09 --> 00:19:11 says somebody is dangerous and wants to act without
00:19:11 --> 00:19:14 proving it. If the right only applies when the
00:19:14 --> 00:19:15 government's claims aren't serious, it doesn't
00:19:15 --> 00:19:18 apply at all. Yeah, because the government will
00:19:18 --> 00:19:21 always say the claims are serious. Yes, of course
00:19:21 --> 00:19:23 it will. That's the nature of government power.
00:19:23 --> 00:19:26 Every detention is justified. Every deportation
00:19:26 --> 00:19:28 is necessary. The question is whether anyone
00:19:28 --> 00:19:31 gets to check. And when the answer is no, when
00:19:31 --> 00:19:33 the system is designed so that people are removed
00:19:33 --> 00:19:35 before they can challenge it, or the process
00:19:35 --> 00:19:37 for challenging is a one -page form in a language
00:19:37 --> 00:19:40 they don't speak with a 12 -hour deadline, then
00:19:40 --> 00:19:42 we've decided that the government's word is enough.
00:19:42 --> 00:19:44 And the government's word was enough for Abrego
00:19:44 --> 00:19:47 Garcia. They said he was a gang member, an immigration
00:19:47 --> 00:19:50 judge had already found otherwise, and ended
00:19:50 --> 00:19:52 up in a foreign prison anyway. Right. So the
00:19:52 --> 00:19:54 same framework that's protecting a non -citizen
00:19:54 --> 00:19:57 facing deportation protects you. Due process
00:19:57 --> 00:19:59 isn't a special right the government extends
00:19:59 --> 00:20:01 to people it likes. It's the minimum the Constitution
00:20:01 --> 00:20:04 demands before the government acts against anyone.
00:20:04 --> 00:20:07 Against a person. Right. Against any person,
00:20:07 --> 00:20:10 not any citizen. And the day we accept that some
00:20:10 --> 00:20:12 people can be detained and removed with no meaningful
00:20:12 --> 00:20:14 ability to challenge it is the day that protection
00:20:14 --> 00:20:17 starts to erode for everyone. The principle itself
00:20:17 --> 00:20:19 is the protection. Once you create the exception,
00:20:20 --> 00:20:23 the exception grows. Yeah. I mean, it feels weird
00:20:23 --> 00:20:26 being an originalist here, but that's what the
00:20:26 --> 00:20:28 founders understood. We can tell because they
00:20:28 --> 00:20:30 wrote it right into the original Constitution.
00:20:31 --> 00:20:35 Before anything else. So that does it for today's
00:20:35 --> 00:20:37 episode on Administrative Remedies. Thank you
00:20:37 --> 00:20:40 for joining us today. Please, if you enjoy this
00:20:40 --> 00:20:42 podcast and enjoy this episode, give us a like
00:20:42 --> 00:20:46 on Spotify, iTunes, or whatever platform you're
00:20:46 --> 00:20:49 listening on. And be sure to tune in next time
00:20:49 --> 00:20:51 where we'll continue to dive into the contours
00:20:51 --> 00:20:53 of administrative law, because remember, you
00:20:53 --> 00:20:55 can't fix what you don't understand.