'Banal Horror': Asylum Case Deals Trump Yet Another Loss on Due Process
President Trump is entitled to try to execute his immigration policy. He is not entitled, however, to violate the Constitution.
The Trump administration this week formally agreed to comply with a ruling that ordered it to facilitate the return of a migrant who was unlawfully deported—in what was another loss for the government as it attempts to subvert basic due process rights in immigration proceedings.
The migrant—named in court documents as O.C.G., who has no criminal history—arrived in the U.S. in May 2024 and sought asylum. An officer agreed he had a credible fear of persecution and torture if returned to Guatemala; a judge assented as well and granted him withholding of removal to that country.
During his proceedings, when he asked if he might be sent to Mexico, a judge replied: "We cannot send you back to Mexico, sir, because you're a native of Guatemala." Deportations to a nonnative country legally require, at a minimum, additional steps in the process.
That was particularly relevant to O.C.G.'s case, because, as he testified in court, he claims to have been held for ransom and raped while passing through Mexico, securing release only after a family member paid the sum. Yet two days after his withholding of removal was granted, the government unlawfully deported him—without giving him a chance to contest it—to Mexico, after which he returned to Guatemala, where his attorneys say he lives in hiding and in fear of serious harm.
Particularly fraught is that the government had submitted in a declaration under oath that it could prove O.C.G. had no fear of returning to Mexico. Turns out that wasn't true. "The Court was given false information, upon which it relied, twice, to the detriment of a party at risk of serious and irreparable harm," Judge Brian E. Murphy of the U.S. District Court for the District of Massachusetts wrote. "Defendants admitted, hours before the scheduled deposition of the witness who could allegedly verify the facts included in the prior declaration made under oath, that, in fact, there was no such witness and therefore no reliable basis for the statements put forward by Defendants."
"O.C.G. is likely to succeed," Murphy added, "in showing that his removal lacked any semblance of due process."
The order—and the Trump administration's agreement to comply with it—is noteworthy for a few reasons. Foremost, it shows that the government can, in fact, facilitate the return of someone it unlawfully deported. It has contested its ability to do so in the case of Kilmar Abrego Garcia, a Salvadoran national whom the administration says it wrongfully sent to El Salvador, where he had a withholding of removal, due to an "administrative error." The Supreme Court last month ordered that the administration facilitate Abrego Garcia's return.
Also in April, the Court ruled the government may not expel individuals under the Alien Enemies Act without due process, as the Trump administration had tried to do. This month, the justices extended an injunction prohibiting the government from using that law to remove Venezuelan immigrants, finding that detainees were entitled to a more robust process than the government had given them.
But Murphy's ruling is also a reminder that the administration will continue losing on this front, so long as it continues flouting the law. There is an irony there: In trying to deport people as quickly as possible, the government finds itself constantly spending time and resources in court, having to justify and backtrack on cases it fumbles. President Donald Trump campaigned on hawkish immigration policy, and as chief executive he is entitled to try to execute that vision. He is not entitled, however, to violate the Constitution to do so. That isn't going to change. It's not a conspiracy against him.
In this instance, O.C.G.'s case is fairly simple. "In general, this case presents no special facts or legal circumstances," Murphy writes, "only the banal horror of a man being wrongfully loaded onto a bus and sent back to a country where he was allegedly just raped and kidnapped." And now he will receive a taxpayer-funded plane ride back to the United States, so he can receive the due process he is promised by the Constitution.
