Joe Rogan Is Right: It Is 'Kind of Crazy' To Deport Innocent People Mistakenly Identified As Gang Members

The Trump administration says it is shameful even to suggest that immigration agents could make such errors.

"You gotta get scared that people who are not criminals are getting lassoed up and deported and sent to El Salvador prisons," Joe Rogan said on his hugely popular podcast this week. "This is kind of crazy, that that could be possible. That's horrific."

Rogan was alluding to Venezuelan makeup artist Andry Hernandez, who was shipped off to El Salvador's notorious Center for Terrorism Confinement (CECOT) last month. Based largely on innocent tattoos, Hernandez's supporters say, U.S. Immigration and Customs Enforcement (ICE) mistakenly identified him as a member of Tren de Aragua, the Venezuelan gang targeted by President Donald Trump's March 15 proclamation invoking the Alien Enemies Act (AEA).

As Reason's Fiona Harrigan notes, Hernandez is by no means the only Venezuelan who seems to have been deemed a member of Tren de Aragua, and therefore subject to immediate deportation under that proclamation, based on iffy evidence such as supposedly suspicious tattoos and clothing. Rogan, who endorsed Trump in last year's presidential election and supports his efforts to deport violent criminals, nevertheless thinks it's "crazy" and "horrific" that someone like Hernandez could be consigned to CECOT without due process.

White House Press Secretary Karoline Leavitt, by contrast, sees nothing amiss in the administration's use of the AEA. "The president made it incredibly clear to the American public that there would be a mass deportation campaign of not just foreign terrorists but also illegal criminal aliens who have been wreaking havoc on American communities," Leavitt said on Monday after Andrew Feinberg, The Independent's White House correspondent, asked her about ICE's criteria for identifying Tren de Aragua members. "And shame on you and shame on the mainstream media for trying to cover for these individuals. This is a vicious gang, Andrew."

Leavitt's tirade either obtusely or intentionally missed the point of Feinberg's question: Granted that Tren de Aragua is "a vicious gang," how does ICE know the people it is sending to CECOT are actually members of that gang? That issue is distinct from the question of whether Tren de Aragua qualifies as a "foreign nation or government" that has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States," as would be required to invoke the president's broad deportation authority under the AEA.

There are good reasons to doubt Trump's counterintuitive interpretation of that 227-year-old statute. But even if the proclamation were perfectly legal, that would not settle the question of whether any particular individual is subject to it. The uncertainty about ICE's judgments underlines the importance of providing a forum in which alleged Tren de Aragua members can challenge them. That concern was the main basis for the March 24 ruling in which James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, rejected the government's motion to lift his March 15 temporary restraining order (TRO) barring deportations based on Trump's proclamation while a legal challenge to them is pending.

The case, J.G.G. v. Trump, involves five named plaintiffs representing a broader class of alleged Tren de Aragua members. "Each vehemently denies being a member of Tren de Aragua and thus subject to the Proclamation," Boasberg notes. "Several in fact claim that they fled Venezuela to escape the predations of the group, and they fear grave consequences if deported solely because of the Government's unchallenged labeling."

Boasberg notes that Trump's "unprecedented use of the [AEA] outside of the typical wartime context…implicates a host of complicated legal issues, including fundamental and sensitive questions about the often-circumscribed extent of judicial power in matters of foreign policy and national security." Those concerns "arise principally in connection with Plaintiffs' contention that any action taken pursuant to the Proclamation is unlawful because, despite the President's determination otherwise, Tren de Aragua is not a 'foreign nation or government,' and its actions, however heinous, do not amount to an 'invasion' or a 'predatory incursion.'"

In deciding whether to lift the TRO, Boasberg says, he "need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place" because the plaintiffs "are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all. As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, 'alien enemies.' And the Supreme Court and this Circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such."

The government argued that the plaintiffs should have filed habeas corpus petitions in Texas, where they were detained pending deportation. But Boasberg ruled that the plaintiffs can challenge their deportation (as opposed to their detention) as "arbitrary and capricious" or "contrary to law" under the Administrative Procedure Act. And he cited a long line of cases in which federal courts have intervened to determine whether foreign nationals threatened with deportation under the AEA were in fact "alien enemies," meaning they were "natives, citizens, denizens, or subjects" of a "hostile nation or government."

In this case, even accepting Trump's claim that Tren de Aragua counts as a "hostile nation or government," the relevant factual question is whether the plaintiffs are actually members of that criminal organization. "The named Plaintiffs, on behalf of themselves and their class, contest their designations as members of Tren de Aragua and argue that they must be given an opportunity to challenge Defendants' position that they fall within the Proclamation," Boasberg writes. "Because the caselaw is clear that such questions are reviewable, and because those outside the bounds of the Proclamation's definition of 'alien enemies' are not removable under the [AEA], Plaintiffs are likely to succeed on the merits of their claim."

It is telling that Leavitt took umbrage at the suggestion that ICE might have erred in identifying people as Tren de Aragua members. "There is a litany of criteria that they use to ensure that these individuals qualify as foreign terrorists and to ensure that they qualify for deportation," she told Feinberg. But as Feinberg noted, the "alien enemy validation guide" used by ICE says "aliens scoring 8 points and higher are validated as members" of Tren de Aragua, and the combination of supposedly gang-related "tattoos" (four points) and "dress" (four points) would be enough to cross that threshold.

Both of those factors fall into the "symbolism" category of the checklist, which also includes social media posts (two points), grafitti (two points), and "hand signs" (two points). There is also an "association" category, which includes living, associating, or appearing in photos with "known" Tren de Aragua members (two points each). "If all tallied points for an alien are from the Symbolism and/or Association categories," the document says, "consult your supervisor and OPLA [the Office of the Principal Legal Advisor] before determining whether to validate the alien as a member" of the gang. People with scores of six or seven "may be validated as members" of Tren de Aragua based on "the totality of the facts."

Leavitt thinks Feinberg should be ashamed of himself for even raising the possibility that innocent people could be erroneously "validated" as members of Tren de Aragua based on those criteria. "You are questioning the credibility of these agents who are putting their life on the line to protect your life and the life of everybody in this group and everybody across the country," she said. "They finally have a president who is allowing them to do their jobs, and God bless them for doing it."

As Leavitt sees it, "questioning the credibility" of ICE agents is unacceptable because they are "putting their life on the line" to protect public safety. The same logic could be applied to any allegation by any police officer, making due process for criminal defendants an affront to brave public servants.

Despite his sympathy for Trump's agenda, Rogan sees a problem with that mentality. "That's bad for the cause," he said. "The cause is 'let's get the gang members out.' Everybody agrees. But let's not [let] innocent gay hairdressers get lumped up with the gangs." Shame on him!