Among the most striking cases before the Supreme Court is one that may well affect immigrants on Martha’s Vineyard. The case, Department of Homeland Security v. D.V.D., asks the court to continue to allow the Trump administration to send undocumented immigrants to a country where they have no ties, and where they may be in danger of torture, imprisonment, or death (known as “third countries”). These removals are often undertaken without a hearing in violation of due process of law.
Boston District Court Judge Brian E. Murphy initially ruled against the administration, and placed a nationwide injunction to stop these removals. Six conservative Supreme Court justices allowed the administration to continue this practice after an emergency appeal by the administration. The case is terribly troubling and frightening to the four litigants, who now may face dreadful consequences if the U.S. deports them.
The question is whether those six justices are sensitive to human rights abuses, especially those recognized in international law. For many generations, jurists, political commentators, and lawyers have debated whether American law is subject to international law and norms. Some have said yes, others no. Dean Harold Koh of Yale University Law School once wrote an article, for example, titled, “International Law Is Part of Our Law.” Justice Antonin Scalia objected, saying that he does “not use foreign law in the interpretation of the United States Constitution.”
This case raises the issue of international human rights abuses: the plaintiffs argue that they may well be in danger in some countries that will not recognize their individual needs. One plaintiff needs psychiatric care, and is fearful of being deprived of it should his host country ignore his problems. Another is outwardly gay, and was beaten and raped in his home country before he traveled to the U.S. A third is a woman whose husband beat and abused her, and she is frightened that he will locate her in a third country and kill her. A fourth person was severely beaten by local police in his own country after he refused to deliver illegal drugs for them. They all fear that they may be deported back to the country from which they fled.
The problem is amplified because Homeland Security officials do not tell immigrants the name of the third country where they’re sending them. Nor do they give them an opportunity to contest their removal to these places. These failings directly violate the Convention Against Torture and Inhuman Treatment and Punishment (known as CAT), to which the U.S. is a party.
When President Ronald Reagan submitted the treaty to the Senate for ratification in 1987, he stated that “the core provisions of the convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’ Each state party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”
But the Trump administration, in violation of the convention’s provisions, ignores the convention’s key element when it disallows undocumented immigrants to ask Homeland Security officials where they are being sent, and inform them why they should not have to go to these places. These third countries could and may well send the immigrants back to their home country, where they have already endured persecution and torture. The removal of these four plaintiffs, and others who follow them, also implicates another U.S. law, the Foreign Affairs Reform and Restructuring Act, which President Bill Clinton signed in 1997. The act states that it is U.S. policy “not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the U.S.”
The bottom line is whether the U.S. has become a lawless nation regarding international human rights in areas that are deeply ingrained in federal law. We won’t know until the Supreme Court hears this case on Dec. 9, but even then, we will have to await the court’s final ruling sometime next year in June or July. Meantime, those living on the Island who are picked up by Immigration and Customs Enforcement officers may well find themselves suddenly herded off to some foreign country to which they have no ties and where they may find they face horrible forms of persecution. This is not the U.S. we have long believed in.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.
