Immigration agents are the “principal” deciders on whether a detainee is linked to a gang and should be deported immediately, border czar Tom Homan told Axios in an exclusive interview.
- If agents determine the answer is yes, Homan said, the Trump administration believes that detainee’s rights to due process are limited.
- Not so fast, the Supreme Court said late Monday. The court signaled that detainees designated as “enemies” of the U.S. could be deported, but should have some way to challenge their removal.
Driving the news: Homan’s comments to Axios came on a day when the Supreme Court began to sort out how far President Trump can go in his aggressive push to deport immigrants the administration sees as threats to the U.S.
- In a separate decision, Chief Justice John Roberts temporarily blocked a lower court’s order that the U.S. return a Maryland man, Kilmar Armando Abrego Garcia, whom the administration admits was mistakenly deported to a prison in El Salvador.
Garcia, a Salvadoran who had been in the U.S. since 2011 and was here legally, was among those swept up by Immigration and Customs Enforcement (ICE) in raids last month that officials say targeted alleged gang members and criminals.
- Many of those arrested were men like Garcia who say they weren’t in gangs or wanted for crimes, civil rights advocates and other critics say. Garcia’s case has become a much-watched test of the White House’s zealous push for deportations.
Zoom in: Homan declined to comment on Garcia’s case. But he told Axios that Trump is simply “using the laws on the books” to quickly deport unauthorized and potentially dangerous immigrants under the rarely used Alien Enemies Act.
- “People who are enemies of the United States don’t have the same level [of] due process [as in] the normal process,” Homan said.
- “People keep saying they have no criminal history,” he added. “I’ve been doing law enforcement since 1984. Many gang members don’t have criminal history. It’s more than criminal history.”
Homan said ICE conducts “deep dive” investigations into detainees being considered for removal, looking at their social media posts, criminal records, immigration records and information from confidential informants and surveillance.
- “ICE is the principal arbiter” in weighing whether such factors warrant deportation, Homan said. “There’s a Homeland Security task force and a lot of agents involved. … But it starts with ICE.”
The administration claims Garcia is a member of MS-13, a transnational gang that U.S. officials have designated as a terrorist organization.
- U.S. District Judge Paula Xinia in Maryland said Trump’s team made a “grievous error” deporting Garcia, and that evidence indicating he’s a gang member “consisted of nothing more than his Chicago Bulls hat and hoodie.”
Between the lines: Homan said agents use several factors in determining membership in a designated terrorist gang such as MS-13 or the Venezuelan-based Tren de Aragua.
- He said those factors include, but aren’t limited to, tattoos or religious emblems: “It can be one factor or up to 20 factors … It’s a case-by-case analysis.”
Agents’ decisions for identifying gang members are made using a rubric with an eight-point threshold for removal, according to a court document.
- In the case of Tren de Aragua, a tattoo “denoting membership/loyalty to TDA” would count four points toward a removal action, according to the document. If a person admits being a gang member, that alone would be enough for removal from the U.S.
- “I’ve talked to the highest level at ICE and they’ve reassured me several times: Everyone that was removed under the Alien Enemies Act was a gang member and a terrorist,” Homan said.
The other side: “Just the word of an ICE officer should not suffice as the final word that someone is covered by the Alien Enemies Act,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute.
- Nayna Gupta, policy director at the American Immigration Council, said it was “wild” that the administration would seek to ignore due process for accused immigrants.
- She noted that when the Alien Enemies Act was used against people of Japanese, German and Italian descent during World War II, there was a hearing process for the accused.