Amid President Donald Trump’s immigration crackdown, some Republicans are brushing away concerns about due process. White House adviser Stephen Miller, for example, claimed that “if you illegally invaded our country the only ‘process’ you are entitled to is deportation.” Rep. Victoria Spartz (R-IN) claimed, “There is no due process if you come here illegally because you violated the law.”
But a massive mix-up by the Trump administration that reportedly sent a makeup artist to a foreign jail for terrorists offers a tragic and timely reminder why due process is such an important, fundamental human right.
As the Daily Mail reports, a 31-year-old Venezuelan makeup artist, Andrys Hernandez, entered the United States last year and claimed asylum, claiming he faced persecution for his criticism of the Venezuelan government and his homosexuality. Hernandez was placed in detention on very loose suspicion that he was connected to a Venezuelan gang because of his tattoos, and he waited many months for an immigration hearing on his asylum claim that was scheduled for March 13.
But he was never able to present his case and proof that he was an innocent makeup artist, not a gang member, because he was deported before he had the chance. Not back to Venezuela, his country of origin, but to El Salvador, where he was reportedly sent to an infamous prison for terrorists, the Terrorism Confinement Center.
“CECOT is a notorious prison where inmates are subjected to extremely harsh treatment and live in overcrowded cells without basic essentials,” the Daily Mail reports. “Inmates are herded into cold, sparse cells with 80 men crammed into each, with no sheets, pillows, or even mattresses — just hard steel bedframes.”
Of course, if he were truly confirmed to be a dangerous member of the Tren de Aragua gang, sending Hernandez to this hellhole might be defensible. But there’s no reason to believe that he actually is, and the most minimum respect for human rights requires that he be given a chance to prove his innocence before being condemned to this horrific fate. (After all, it is nearly impossible for anyone to get released from this Salvadoran prison.)
Common sense suggests that the Trump administration has made a catastrophic error. I mean, does this person look like a member of a violent gang to you?
The only “evidence” they have tying this man to Tren de Aragua is his “crown” tattoos that read “mom” and “dad.” This does not actually prove or even really suggest membership in the gang.
“Most young people in Latin America these days have tattoos,” Venezuelan journalist Ronna Risquez, who wrote a book about Tren de Aragua, told the New Yorker. “Tren de Aragua does not use any tattoos as a form of gang identification; no Venezuelan gang does.”
All of this likely could’ve been vetted at the immigration hearing Hernandez was supposed to get. But the Trump administration didn’t wait. Instead, the Daily Mail reports, “Trump made the deportations under the Alien Enemies Act of 1798, which he claimed allowed him to ignore due process.”
On the contrary, due process is both a human and constitutional right, promised by the Fifth Amendment to all “persons,” not just U.S. citizens. Even famed conservative Supreme Court Justice Antonin Scalia once wrote, “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
DEMOCRATS ASK HOW MANY WERE WRONGLY DEPORTED TO EL SALVADOR PRISON IN ADDITION TO MARYLAND MAN
So, simply invoking an old statute to justify Trump’s actions isn’t good enough. Any law that gives the president the authority to violate human and constitutional rights is itself immoral and unconstitutional. It’s no surprise that the last time the Alien Enemies Act of 1798 was invoked, it was to detain Japanese Americans during World War II, one of the worst violations of civil liberties in modern American history. Even if the Alien Enemies Act’s suspension of due process rights were somehow legitimate or constitutional, which it isn’t, nothing requires nor justifies Trump’s decision to invoke it.
Trump was absolutely elected with a mandate to deport violent criminals and gang members who are in the United States illegally. But it’s really not too much to ask that the president pursue this important priority without trampling over human rights or condemning innocent people to hell on earth.
Brad Polumbo is an independent journalist and host of the Brad vs Everyone podcast.