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'They're Doing Their Best to Turn People Who Have Not Committed Any Crime Into Criminals': Janine Jackson ([link removed])


Janine Jackson interviewed the American Immigration Council's Dara Lind about the criminalization of immigrants for the April 11, 2025, episode ([link removed]) of CounterSpin. This is a lightly edited transcript.

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ABC: Judge says Maryland man's erroneous deportation to El Salvador prison 'shocks the conscience'

ABC (4/6/25 ([link removed] Defendants acknowledge%2C they had no legal authority to arrest him%2C no justification to detain him%2C and no grounds to send him to El Salvador %E2%80%93 let alone deliver him into one of the most dangerous prisons in the Western Hemisphere%2C%22 Xinis wrote in the court document%2C filed Sunday.) )

Janine Jackson: US legal resident Kilmar Abrego Garcia ([link removed]) was swept up by ICE and sent to an infamously harsh prison in El Salvador. A judge declared ([link removed] Defendants acknowledge%2C they had no legal authority to arrest him%2C no justification to detain him%2C and no grounds to send him to El Salvador %E2%80%93 let alone deliver him into one of the most dangerous prisons in the Western Hemisphere%2C%22 Xinis wrote in the court document%2C filed Sunday.) that unlawful, and, we are to understand, the White House said, “Yes, actually, that was an administrative error, but we won't return him to his family in Maryland because, well, he's there now, and besides, they paid for him.” And in the latest, as we record
([link removed]) on April 9, the Supreme Court says, “You know what? Let's sit on that for a minute.”

What in the name of humanity is happening? Is it legal? Illegal? Does that matter? What can thinking, feeling human beings do now to protect fellow humans who are immigrants in this country?

Dara Lind is senior fellow at the American Immigration Council ([link removed]) , and has been reporting ([link removed]) on issues around immigrants’ rights for years ([link removed]) now. She joins us now by phone from DC. Welcome to CounterSpin, Dara Lind.

Dara Lind: Thank you for having me on. Let's try to figure this out.
Immigration Impact: Why Trump’s Use of the Alien Enemies Act Matters for America

Immigration Impact (3/20/25 ([link removed]) )

JJ: Yeah. Well, let's start, if we could, with what some are calling “renditions,” ([link removed]) because “deportation” doesn't really seem to fit. The White House has invoked the Alien Enemies Act ([link removed] issue was,constitutes an invasion.) as justification for sending, in this case, Venezuelan people it has deemed to be members of a gang, Tren de Aragua ([link removed]) , to the notorious Terrorism Confinement Center in El Salvador.

They are no contact. We don't know what's happening to them, exactly. They haven't been convicted of any crime. They've had no chance to challenge charges against them.

You've written recently ([link removed]) about this rubric that's being wafted over this, and that folks will have heard about: the Alien Enemies Act. Talk us through, if you would, what that is, and what we should make of this employment of it.

DL: Sure. So the Alien Enemies Act was enacted in 1798. It was part of a suite of laws ([link removed] a result,about the government.) , where every of the other laws that were passed around those issues—as America was very worried about war between Britain and France—all of the other acts passed around that were eventually rescinded, because everybody kind of looked at that moment and went: “Ooh, that was a little bit tyrannical. We may have gone too far there.” But the Alien Enemies Act stayed on the books, and has been used very infrequently since then, most recently in World War II ([link removed]) , to remove Japanese and German nationals.

What the Trump administration has done is say, “One, we're using it again. Two, we're using it not against a government, but against a criminal group, the Venezuelan gang Tren de Aragua,” which they argue is so enmeshed with the government of Venezuela that it constitutes a hybrid criminal state. And three, saying that any Venezuelan man over the age of 14 who they deem to be a member of Tren de Aragua can be removed under the Alien Enemies Act, without any of the process that is set out in actual immigration law.
New Republic: What the Supreme Court Got Wrong About Habeas Petitions

New Republic (4/11/25 ([link removed]) )

Under immigration law, you have the ability to make your case before a judge, to demonstrate that you qualify for some form of relief, such as asylum if that applies to you, and the government has to prove that you can be removed. They say, “No, no, no, no, no, because this law existed before any of that, we don't have to go through any of that process.” That is their interpretation of the law, under which they put people on planes and sent them to El Salvador.

What has been litigated, and with a Supreme Court order on Monday night, where we are right now, is that the courts have said, “No, it is illegal to use the Alien Enemies Act to remove people with no process whatsoever.” But the Supreme Court says, if people want to challenge their removal under the Alien Enemies Act, they need to do it through what are called habeas claims ([link removed] allowed for,prevent their removal.) , which is not the way that the initial court case was brought.

So in theory right now, we're in a world where someone hypothetically could be removed under the Alien Enemies Act, but how that's going to work in practice is a little bit unclear, because it would have to be a different process than the one the Trump administration used in mid-March. And what we're actually seeing is, even in the hours before you and I are speaking, that judges have started to receive lawsuits filed under these habeas claims, and have started saying, “Yeah, you can't remove people under this act through this either.” So it's really changing very quickly on the ground, and part of that's the result of this 200+-year-old law being used in a manner in which it's never been used before, and with very little transparency as to what the administration wants to do with it.

JJ: It seems important to say, as you do in the piece that you wrote, that the Alien Enemies Act sidesteps immigration law, because it's being presented as kind of part of immigration law, but one of the key things about it is that it takes us outside of laws that have been instituted to deal with immigration, yeah?
CounterSpin: ‘With This Delay of Vacating Title 42, the Death Toll Will Only Rise’

CounterSpin (1/6/23 ([link removed]) )

DL: I compare this to when the Trump administration, after the beginning of the Covid pandemic, used Title 42 ([link removed]) , which is a public health law, to essentially seal the US/Mexico border from asylum seekers. In that case, they were taking a law from outside of immigration, that had been enacted before the modern immigration system, and saying, because this law doesn't explicitly say immigration law is in effect, we can create this separate pathway that we can use, that we can treat immigrants under this law without having to give them any of the rights guaranteed under immigration law.

They're doing the same thing with this, saying, because this law that is on the books doesn't refer to the Immigration and Nationality Act ([link removed] act outlines,U.S.) , which was passed a century and a half later, we don't need to adhere to anything that was since put in to, say, comply with the Refugee Convention ([link removed]) , to comply with the International Convention Against Torture ([link removed]) , all of these structures that have come into place as people have started to care about human rights, and not sending people to torture or persecution—they're now saying they don't have to bother with, because they weren't thinking about them in 1798.

JJ: Right. And it brings us to, folks for many years on many issues have been saying, Well, it's not legal, so it's all going to be fixed, because the law's going to step in and fix it, because it's not legal. And I think you're referring to the fluidity and the importance of the invocation of law. It's not like it just exists, and you bring it down to bear. It's fought terrain.

DL: Right. Yes, exactly. It's contested, and when we say "contested," it really is being fought out in the courts as we speak. Because the administration is using its authority, the fact that it is the federal government, and litigators are saying, “Please point to us in the law where you can do that, or demonstrate to us that you are adhering at all to what we think of as fairly basic constitutional protections, like due process, like the right to know what you're being detained for.”

What is legal is ultimately what the courts decide, but how they rule on this is very unclear, and, to be fully honest, the government's insistence on giving very little information, and in conceding very little—even in cases like Mr. Abrego Garcia's, where, as you say, they've said there was a mistake made—makes it a little bit harder to understand what it would even look like to say a government that's been so truculent and so resistant is in fact operating under the law.

JJ: Let me just pivot a little bit. The talking point of, If they just come here the right way, like my grandparents did—that's ahistorical garbage ([link removed]) , we understand, but it's still potent. And we have seen for years an effort to cleave “bad immigrants” from “good immigrants,” and to suggest, even now, that the good ones have nothing to fear.

Your work places this “bad hombre” rhetoric within a broader context of immigration policy and enforcement, because you don't have to throw people in the back of a van to stir up enough fear and uncertainty to upend lives. You can do it with a quietly announced rule change.

And so I just want to ask you to talk about some of the maybe less visible fronts—you know, the ending of the CHNV program ([link removed] is terminating the CHNV,individual determination to the contrary.) , the demand for registration ([link removed] soon as it was,nationals did not have sponsors.) . Talk about some other things that are going on that are still, in their own way, violent and disruptive.
Dara Lind

Dara Lind: "They're taking far more sweeping, categorical actions toward people with fewer protections under current law, and it's harder to talk about those."

DL: I love this question so much, because something that I personally have been thinking about a lot over the last several weeks is that the administration has gotten a lot of attention for the unprecedented ways in which it's treated people with legal permission to be here, especially student visas.

But we're hearing about those in terms of individual cases of visas being stripped. And meanwhile, they're taking far more sweeping, categorical actions toward people with fewer protections under current law, and it's harder to talk about those, because they don't look like individual cases. They look like policy changes.

So, for example, thousands of people have gotten letters ([link removed] early April,lose those%2C too.) over the last couple of weeks, saying that their permission to live in the United States and work, which was extended under a presidential authority known as humanitarian parole, has been revoked, or will be revoked as of later this month, and that they're supposed to return to their home countries as soon as possible.

Now, some of those people received those letters in error ([link removed]) . Some of them were Ukrainians who were let in under the United for Ukraine program, and the government said later, the day that it sent them, “Oops, you guys, we didn't mean to send that to you guys, so hopefully you didn't see that and pack up and leave already.”
Immigration Impact: Trump Administration Terminates CHNV Program, Impacting More Than a Half-Million Immigrants

Immigration Impact (4/8/25 ([link removed]) )

But many of them are being told they need to leave immediately, or within seven days, and it's absolutely upending their lives, because they were told they had two years, or that they didn't have to think about this until the next time their parole was up for renewal.

What you're alluding to with registration is this bind ([link removed]) that they're trying to place immigrants in. People may very well not know that while we talk about "unauthorized" or "illegal" immigrants in the US, millions of those, at this point, are known to the government ([link removed]) in some form or another: They have pending immigration court hearings, or they have some form of temporary permission to be in the United States.

While the Trump administration is, on the one hand, talking about this "invasion" of people who we don't know who they are, on the other hand, they're trying to use yet another obscure pre-1960s law to force anyone who isn't already on the books with the federal government to register.

Now, are they going to be protected by registering? Are they being given legal status? Are they being given the right to work? No, not at all. And, in fact, the government has said nothing—the implication is that they're using that information to go find people and deport them. But if you don't register, then you risk being prosecuted as a federal criminal.

So they're doing their best to, instead of actually going after the criminals who they promised were lurking around every corner on the campaign trail, to turn people who have not committed any crime into criminals, simply by engaging in what previously was a civil violation of immigration law.

JJ: To put the pin on it, this would make the United States a place where you can be stopped and told to show your papers.

DL: Yeah, this law that was passed in 1940 ([link removed] Alien Registration Act of 1940 required that all persons who were not citizens or nationals of the United States and were living within U.S. borders go to the local post office and register their alien status with the government.) says that if you do not produce evidence that you've registered if asked by an immigration official, then that also constitutes a federal crime. It's absolutely one of those where, we say all the time, we're not a country that asks people to show their papers, and actually, according to this obscure law, that is a thing we can do.

But as with so many things in immigration law, there are powers the federal government in theory has but doesn't use. And the Trump administration is trying to use them for the first time, and reminding a lot of people just how much power we've given the government and trusted them to use correctly.

JJ: Absolutely. Well, we understand, if we're paying attention, that the Trump administration is not just interested in so-called criminals when we read that they are tracking anyone ([link removed]) —immigrant, citizen, no matter—who expresses criticism of the deportation agenda on social media. So it seems clear that this is ideologically based on its face, or at least pieces of it is. Is that not a legal front to fight on?
Just Security: Explainer on First Amendment and Due Process Issues in Deportation of Pro-Palestinian Student Activist(s)

Just Security (3/12/25 ([link removed]) )

DL: A lot of things that would be entirely illegal, if the government went after a US citizen for them, are in fact historically considered OK for the government to do in the context of immigration law. For example, the grounds that are being used for many of these student visa revocations are this obscure regulation ([link removed]) that the State Department can revoke the visa of anyone it deems to be a foreign policy problem for the United States, which does open itself up to deporting people for speech, for protected political activity, for, again, the sort of thing that would be a core constitutional right for US citizens, but that, in the context in which US immigration law has developed, which was a lot of people being very concerned about Communist infiltration, immigrants have been carved out.

I think in general, it's really important for people to understand that while the Trump administration loves to imply that it's going to use all of its powers maximally, that no one is safe and that everyone should be afraid, in fact citizens do have more protections than Green Card holders, Green Card holders do have more protections than others.

For example, the one Green Card holder who they've tried to use this State Department thing on, the judge in that case ([link removed]) , as of when we're talking, has told the government, give me some evidence in 24 hours or I'm ordering this guy released. Because it does take more to deport somebody on a Green Card.

So how scared people should be, this isn't just a function of what the government is saying—although what it's doing is more relevant—but it should also be a function of how many layers of protection the government would have to cut through in order to subject you to its will.
WaPo: Trump wants to send U.S. citizens to foreign prisons. Experts say there’s no legal way.

Washington Post (4/10/25 ([link removed]) )

JJ: And that gives us points of intervention, and I appreciate the idea that while we absolutely have to be concerned about what's being said, it's helpful to keep a clear eye on what is actually happening, so that we see where the fronts of the fight are. But I then have to ask you, when you hear analysts say, well, this person had a disputed status, this person had a Green Card, and make those distinctions, but then you hear Trump say ([link removed]) , well, heck yeah, I'd love to send US citizens to prison in El Salvador.

He's making clear he doesn't think it's about immigration status. He says, if I decide you're a criminal, and you bop people on the head, or whatever the hell he said, you're a dangerous person. “Well, I would love the law to let me send US citizens to El Salvador also.” So you can understand why folks feel the slipperiness of it, even as we know that laws have different layers of protection.

DL: I do. The thing that strikes me about these US citizens–to–El Salvador comments is that I was reporting on Trump back when the first time he was a presidential candidate, so I've been following what he says for a minute. It's really, really rare for Donald Trump to say “if it's legal," "we're not sure it's legal.”

But he said that about this, and press secretary Karoline Leavitt has also said that ([link removed] president has said if it%E2%80%99s legal%2C right%2C if there is a legal pathway to do that%2C he%E2%80%99s not sure. We are not sure if there is%2C it%E2%80%99s an idea that he has simply floated and has discussed very publicly as in the effort of transparency%2C%E2%80%9D she said.) about this, and that caveat is just so rare that it does make me think that this is different from some of the other things where Trump says it and then the government tries to make it happen, that they are a little bit aware that there's a bright line, and even they are a little bit wary of stepping over it.

And I’m kind of insistent about that, mostly because I worry a lot about people being afraid to stand up for more vulnerable people in their communities, because they're focused on the ways in which they're vulnerable. And so what I don't want to see is a world where noncitizens can be arrested and detained with no due process, and citizens are afraid to speak out because they heard something about citizens being sent to El Salvador, and they worry they will be next.
NYT: What 'Mass Deportation' Actually Means

New York Times (11/21/24 ([link removed]) )

JJ: I hear that. And following from that, I want to just quote from the piece that you wrote ([link removed]) for the New York Times last November, about focusing on what is actually really happening, and you said:

The details matter not only because every deportation represents a life disrupted (and usually more than one, since no immigrant is an island). They matter precisely because the Trump administration will not round up millions of immigrants on January 20. Millions of people will wake up on January 21 not knowing exactly what comes next for them—and the more accurate the press and the public can be about the scope and scale of deportation efforts, the better able immigrants and their communities will be to prepare for what might be coming and try to find ways to throw sand in the gears.

What I hear in that is that there is a real history-making moment for a press corps that's worth its salt.

DL: Absolutely, and to be honest, in the weeks since the flights were sent to El Salvador, we've seen some ([link removed]) tremendous ([link removed]) reporting ([link removed]) from national and local reporters about the human lives that were on those planes. We know so much more about these people than we would have. But what that means is that these people who, arguably, the administration would love to see disappear, Nayib Bukele ([link removed]) would love to see disappear, they're very, very visible to us.

And that's so important in making it clear that things like due process aren't just a hypothetical "nice to have." Due process is the protection that prevents, in general, gay makeup artists from getting sent to a country that they've never been to because of their tattoos, that it's an essential way to make sure that we're not visiting harm on people who have done nothing to deserve it.

JJ: Finally, I do understand that we have to fight wherever there's a fight, but I do have a fear of small amendments or reforms as a big-picture response. We can amend this here or we can return that person. It feels a little bit like a restraining wall against a flood.

And I just feel that it helps to show that we are for something. We’re not just against hatefulness and bigotry and the law being used to arbitrarily throw people out. We have a vision of a shared future that doesn't involve deputizing people to snitch on their neighbors who they think look different. We have a vision about immigration that is a positive vision that we've had in this country, and I guess I wish I'd see more of that right now, in media and elsewhere.

DL: What makes it particularly hard, from my perspective, is that most Americans know very little about immigration law. It's extremely complicated, and most people have never had firsthand experience with it. So in order to get people to even understand what is going on now, you need to do more work than you do for areas where people are more intuitively familiar with what the government does, and that takes up space that otherwise could go to imagining different futures.

The other problem here is that, frankly, it's not that new and radical ideas on immigration are needed. It's a matter of political will, to a certain extent, right?
FAIR: Media ‘Border Crisis’ Threatens Immigration Reform

FAIR.org (5/24/21 ([link removed]) )

The reason that the Trump administration's use of this registration provision is such a sick irony to some of us is that there was a way, that Congress proposed, to allow people to register with the US government. It was called comprehensive immigration reform ([link removed]) . There have been proposals to regularize people, to put people on the books, to bring people out of the shadows.

And the absence of that, and the absence of a federal government that was in any way equipped to actually process people, rather than figuring out the most draconian crackdown and hoping that everybody got the message, is where we've gotten to a point where everyone agrees that the system is broken ([link removed]) , and the only solutions appear to be these radical crackdowns on basic rights.

JJ: Yeah. We've established that the ground is shifting under our feet, but anything you'd like reporters to do more of or less of, or things to keep in mind?

DL: I've been pleasantly surprised at the amount of attention, and duration of attention, on the Salvadoran removals. It's been something where I could easily have seen things falling out of the headlines, just because there weren't any new facts being developed.

I do worry a little bit that now that the court cases—with a couple of exceptions, we're unlikely to see really big developments in the next several days—that that's going to maybe quiet the drumbeat. And I'm hoping that people are continuing to push, continuing to try to find new information, to hold the government accountable to the things that it's already said, especially if they're going to start removals back up again.

Because it's often the case that in the absence of new facts, important things don't get treated as news stories anymore, and it would be really a shame if that were to happen for this, when our only recourse, unless the courts are going to end up ruling that the Trump administration has to send the plane back and put everybody on them and bring them back to the US, is going to be some measure of public pressure on the administration—on the government of El Salvador, even—to do the right thing.

JJ: We've been speaking with Dara Lind. She's senior fellow at the American Immigration Council. Thank you so much, Dara Lind, for joining us this week on CounterSpin.

DL: Thank you.
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