Department of Homeland Security v. D.V.D. (and Rhoney v. Barbosa de Cunha)

Deporting people to dangerous countries? Detaining them indefinitely without bond? Bad, actually. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this episode ad-free and listen to Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support. 5 to 4 is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:04Speaker 00

  Hey, everyone. This is Leon from Prolog Projects. On this week's episode of Five to Four, Peter, Rhiannon and Michael are talking about Department of Homeland Security v. DVD and Rony v. Barbosa de Cunha, both immigration cases that are set to be heard by the Supreme Court in the coming months. The first of these cases is about the deportation of immigrants to third countries, a practice that was once used sparingly in the US with the intent to limit possible harm to the person being removed. But in the second Trump administration, its use has exploded as both a method of deportation and a way to create fear in immigrant communities. The second case is about mandatory detention. The law says that anyone who enters the country

• 0:49Speaker 00

  without being admitted by an immigration officer must be detained without bail until the removal proceedings. Before Trump returned to office, this law only applied to new or recent arrivals in the country. Now, the administration is trying to apply it to any undocumented person, including those who have been in the US for years, making it possible to effectively detain millions of people without bail. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:25Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have sent our civil rights spinning like Rhiannon accidentally drinking 50mg of THC. I'm Peter. I'm here with Michael.

• 1:37Michael Liroff?

  Hey, everybody.

• 1:38Peter Shamshiri?

  And Rhiannon.

• 1:40Speaker 03

  I lived, bitch. I spun, but here I am today to tell the tale.

• 1:44Peter Shamshiri?

  Yeah. And maybe we should start this tale with the fact that Rhiannon started texting us incomprehensible questions a few nights ago.

• 1:54Speaker 03

  Yeah, I had questions.

• 1:55Peter Shamshiri?

  We were all responding to them. And then also, Rhiannon was not responding to us.

• 2:01Speaker 03

  I had questions and I needed to fire them off. Yeah, I was listening to the walls of my house hold up the roof of my house. That's how gone I was. Now, listen, I sometimes partake in a THC seltzer. Usually, those are five or 10mg. And usually, maybe once a quarter, I have half of that. This one, same size can, looks the same. I grab it because the flavor looks interesting. It was 100mg of THC in this can. I drank half of that, meaning I drank 50, when I usually have maximum five. I, well, I texted a lot of people. I texted my partner, first and foremost,

• 2:46Speaker 03

  who wasn't at home at the time. And I said to him, I really wish you could be home because I've done something grave and terrible. And I'm really struggling. And he did come home right away. And when he got home, he found that I was crying to a TikTok video of a woman being pulled onstage to do a dance at a Jason Derulo concert.

• 3:07Michael Liroff?

  Yes.

• 3:08Speaker 03

  Yeah.

• 3:08Michael Liroff?

  Yes, I watched it and was cracking up. I was like, all right, she slayed. She did. But I can't imagine being moved to tears by it.

• 3:17Speaker 03

  I was sobbing. I was sobbing.

• 3:19Peter Shamshiri?

  You texted us, "Have you guys ever read The Courage to be Disliked?" We all said, "No." What the fuck are you talking about?

• 3:27Speaker 03

  And then I didn't respond.

• 3:28Michael Liroff?

  And then that was it.

• 3:29Peter Shamshiri?

  And we still, to this day, don't know what you were curious about.

• 3:32Speaker 03

  But neither do I, sitting here in front of you today. I don't know why I was asking you about that book. But yeah, so my boyfriend just kind of cocooned me in on the couch. He was like, "You're gonna be okay." And here I am. I lived, bitch.

• 3:48Michael Liroff?

  That's right.

• 3:48Speaker 03

  You can't take me down. You really, really cannot take me down.

• 3:51Peter Shamshiri?

  No. And it should go without saying, 100mg of THC in a can of seltzer should be illegal. I mean, that's crazy.

• 4:00Michael Liroff?

  It's insane.

• 4:00Peter Shamshiri?

  That's crazy.

• 4:01Speaker 03

  It's wild.

• 4:02Peter Shamshiri?

  Supreme Court, we call upon you.

• 4:06Peter Shamshiri?

  Find something in the Constitution.

• 4:08Speaker 03

  Step in.

• 4:09Peter Shamshiri?

  And make it happen.

• 4:12Peter Shamshiri?

  All right. Today, we're doing a double feature. Two cases about immigration that are pending before the Supreme Court. The first is Department of Homeland Security v. DVD, which is about the deportation of immigrants to so-called third countries. And the other is Rony v. Barbosa de Cunha about what's called mandatory detention. So let's start with DHS v. DVD. This one has been bouncing around since early 2025. And the Supreme Court just gave a preliminary ruling at the end of September. And we'll be hearing the full case later this term. So, Rhi, I'll hand it to you for the background.

• 4:52Speaker 03

  Yeah, you know, we just did that Supreme Court, the term preview episode, where we talked about cases that are on the docket, set for oral argument, gonna be heard by the Supreme Court. But we said in that episode, I think, Michael, you pointed this out a couple of times, that the Supreme Court will surely take other cases as well. And so here you see, just in the past week or so, there's two more immigration cases that are now set for oral argument. The Supreme Court is going to decide on the merits these cases, even though, you know, both of them have been bouncing around the federal courts for about a year now. So, yes, starting with DHS v. DVD, I want to just read a quote right now about third country removal. This is a quote from the president

• 5:37Speaker 03

  of a refugee resettlement agency called HIAS, Mark Hetfield. He says, "Imagine getting deported to a country where you have no family ties, where you don't know the language or the culture, to which you have never even been, and with an atrocious human rights record. Imagine that this happens when you may not be able to access a lawyer to represent you prior to being deported to such a place." This is what the Trump administration is doing. So this is third country removal. I'm sure listeners have heard about this in the news. It is when someone is put in removal proceedings, deported by the Trump administration, not to their country of origin, but to another country that they're not from. They don't have citizenship and have, in many cases, never even been to,

• 6:21Speaker 03

  have no connections there whatsoever.

• 6:23Michael Liroff?

  Right. And to be clear, they're not being, like, dropped off there to, like, live new lives in Sudan or whatever. They're either being imprisoned in these third countries or the third countries are just being used as conduits to move them on to, you know, their home countries, their countries of origin, where, for one reason or another, we're not supposed to be sending them.

• 6:46Speaker 03

  Yeah. So how does the Trump administration, since last year, justify this policy? Well, there's a section of the Immigration and Nationality Act, the INA, that does allow DHS to deport migrants to countries other than their country of origin. It's just that normally and historically, this provision, this discretion, let's say, for DHS to act this way or pursue this kind of removal has been used really, really sparingly, really, really rarely. Normally, as part of deportation proceedings, what the immigration judge does is designate a country where the migrant should be deported if there's gonna be a deportation order. And of course, usually, that country that's designated by the judge is the person's country of origin.

• 7:31Speaker 03

  But of course, we know in order to, like, facilitate both the escalation, the high numbers of deportations that the Trump administration is seeking, but also the expedited timeline that they are trying to do mass deportations on, the Trump administration has, like, way, way expanded its use of third country deportation. And importantly, legally, this is also happening without giving people notice or an opportunity to say, "No, wait, I have a fear claim. I have a very good reason why I shouldn't be removed to that country." So what has this looked like in the past year? Human rights groups report that more than 25,000 people have been deported to 29 countries under this policy.

• 8:17Speaker 03

  25,000 people removed to countries they may have never been, they are not from, they have no connections to. Now, the vast majority have been removed from the US to Mexico. But other third countries include, of course, countries where these people can be imprisoned, like El Salvador with Sico, or, you know, countries with really, really high levels of civil and political instability, civil war, talking South Sudan, Libya. And, you know, there's been other reporting too around the diplomacy, like, the diplomacy manipulation and pressures that the Trump administration has done on many, many dozens of countries, trying to basically, like, force them,

• 9:00Speaker 03

  coerce them into accepting these kinds of deportations. So let's talk about the plaintiffs here, like, how this case got to the Supreme Court, who is arguing that this is unjust and they shouldn't be removed to a third country. This is a class action, so it's a group of plaintiffs, plaintiff migrants who are facing third country removal. All of these people are identified in all of the court documents by their initials. So first up, DVD is a citizen of Cuba. He has severe illnesses that are managed by medical care in the United States. He fears being removed to countries where he would not get that care and he could be imprisoned on arrival. MM is a citizen of Honduras.

• 9:43Speaker 03

  She fled the country after her husband beat her. Her husband found her in a third country, Mexico, and attacked her. So she fears has... I would say a very reasonable fear of being removed to a third country. EFD is an Ecuadorian national who fled Ecuador after police robbed him there and attacked him physically for refusing to transport drugs for them. En route to the US, this man was kidnapped and robbed in both Guatemala and Mexico. Those are examples of third countries accepting deportations from the United States. And often they then send the migrants back to their country of origin.

• 10:25Speaker 03

  OCG is the last one listed as one of the plaintiffs. He is a gay man from Guatemala who was violently persecuted there for his sexual orientation. He was deported by the United States in March 2024, when DHS refused to give him a credible fear interview. He fled Guatemala again and entered Mexico, where he was kidnapped and sexually assaulted. Then he made it back into the US. In 2025, an immigration judge granted him withholding of removal. Like, okay, you can stay for the time being. You can't be removed to Guatemala, your country of origin. But two days later, without any notice, DHS deported him to Mexico and Mexican authorities then

• 11:09Speaker 03

  removed him to Guatemala, his country of origin, where he was violently persecuted. Now, a district court intervened at that time, ordered his return, and DHS did bring this man back. He's back in the US now. But this is the reality, like the point of describing all of these individuals' lives and their circumstances. This is the reality. They fled extreme danger. They cannot return to their country of origin. And being deported to a third country also, obviously, like, makes them extremely vulnerable to other danger.

• 11:43Michael Liroff?

  Yeah, and I want to take a moment to just really sit with how fucked up this is. Like, it's, it's really horrendous. These are human beings. They're being shackled and whisked off to some country they've never been to, where speaking languages they don't speak, unstable, violent. Maybe they end up in prison there. Maybe they just get returned to another country from which they fled because they weren't safe. No matter what, no matter what the scenario is, it's horrific, right? There's, there's no good outcomes with this. It's just really despicable how we're treating these people.

• 12:18Speaker 03

  So immigration rights groups filed this class action lawsuit on behalf of migrants subject to third country removal. And the case, like we said, it's been pinging around the district court system. And basically procedurally, where we're at right now is that district court judge in Massachusetts, back several months ago, issued another injunction on this policy. DHS obviously applied for an emergency stay from the Supreme Court. And the Supreme Court also granted cert, meaning they said, we're actually going to take up the merits of this case. That's how we're getting to the Supreme Court this term.

• 12:54Peter Shamshiri?

  So let's talk a little bit about the law here. What gives the administration the authority to remove people to third countries? What's the history of this practice? It's not totally unheard of. It's something that can be done legally by DHS if sending the person to their country of origin is impracticable, inadvisable, or impossible. It's something that's historically rare, but the Trump administration has ramped it up in an effort to amiserate immigrants and presumably encourage self-deportation.

• 13:23Speaker 03

  Yeah.

• 13:23Peter Shamshiri?

  The original purpose of this law is kind of the opposite. It's to ensure that people aren't sent to their country of origin if that country of origin is going to be a particularly dangerous place for them, right? If they fled it because they were fleeing violence of some kind. But legally, there is no question that the law allows for this in some form, in some situations. What's at issue here is whether people are receiving adequate notice and an adequate chance to contest their removal.

• 13:55Speaker 03

  Yeah.

• 13:55Peter Shamshiri?

  So back in the summer of 2025, like Ree was saying, a federal district court judge put a temporary halt to the practice. Supreme Court undid that on its shadow docket. There was no majority opinion in that case. The liberals did dissent.

• 14:08Speaker 03

  Yep.

• 14:09Peter Shamshiri?

  And the basic argument that they made was like, look, this whole law is designed from top to bottom to avoid sending people to places where they are in danger. So they need to be afforded due process. There was also this sort of subplot, which Ree, you also mentioned, of bad faith and disobeying the court, right? There's basically no question that DHS was removing people in violation of court orders, right? This is something that got a lot of press in 2025.

• 14:39Speaker 03

  Mm-hmm.

• 14:40Peter Shamshiri?

  So the dissent says, quote, "Here, in violation of an unambiguous TRO, the government flew four non-citizens to Guantanamo Bay and from there deported them to El Salvador. Then, in violation of the very preliminary injunction from which it now seeks relief, the government removed six class members to South Sudan with less than 16 hours' notice and no opportunity to be heard."

• 15:02Speaker 03

  Yeah.

• 15:03Peter Shamshiri?

  And what they point out is that generally speaking, when a party acts in such clear violation of the law, they do not then get to avail themselves of the equities, meaning that a lot of the judgments in these preliminary cases are about like balance and fairness. If you act in clear bad faith, you don't get to then make arguments about fairness, right? And balance and, hey, this, you know, this would be a hardship for us as the government because of blah, blah, blah, right?

• 15:30Michael Liroff?

  Right.

• 15:30Peter Shamshiri?

  If you act in bad faith, you tend to forfeit those arguments. That is sort of a general principle that courts operate under. And of course, this majority in the Supreme Court just ignores that. So the district court last month makes a final ruling saying that the Trump administration policy is illegal. It gets very quickly escalated to the Supreme Court, and they lift that order while they decide the case, right? All but signaling that they will rule for Trump ultimately. I have this like overarching feeling about this case that we're arguing around the point. Like, this case is about whether people being deported to third countries are receiving proper due process, whether they get notice and a hearing. But that feels like an ancillary concern. Like, the real issue is that we have a law designed

• 16:13Peter Shamshiri?

  to prevent people from being deported to countries where they are in danger. And the Trump administration is implementing an executive order specifically designed to deport people to countries where they are in danger.

• 16:25Michael Liroff?

  Right.

• 16:25Peter Shamshiri?

  Everything else feels like minutia. Like, the usual removal idea is like, well, we're gonna deport you, but, you know, we need to get assurances that you won't be tortured, that you won't be persecuted, et cetera. And the Trump administration is like, well, let's send them to places where they are likely to be tortured and persecuted or amiserated in some form. Like, I mean, they're contracting with South Sudan. I mean, what the fuck are we talking about?

• 16:49Speaker 03

  Yeah.

• 16:49Peter Shamshiri?

  Right?

• 16:50Speaker 03

  Yeah.

• 16:50Peter Shamshiri?

  We're talking about notice and a hearing? What do you think?

• 16:52Speaker 03

  Yeah. A country where you will be in danger and a country that, in many cases, is willing to then remove you to your origin country, which is the starting country where you would be in danger and where the United States is not supposed to deport you.

• 17:08Peter Shamshiri?

  Right, right.

• 17:10Michael Liroff?

  Yeah, I think that's right. And I think it goes to like a larger sort of attitude of lawlessness about the Trump administration that we see in this case.

• 17:18Speaker 03

  Mm-hmm.

• 17:19Michael Liroff?

  Which comes through in the due process stuff as well, right? But there's the inversion. Instead of avoiding sending people to dangerous countries, you're purposely sending people to dangerous countries. And to be clear, that comes from the United Nations Convention Against Torture, which was operationalized in the US Code. We're a party to the treaty. We've made it law. There are regulations implementing that law. This is in violation of several levels of prohibitions. But then, like, the due process stuff is also, like, the district court said, like, these people would have had to be, quote unquote, yelling at any of the jailers that they were afraid to go to South Sudan in order to satisfy, like, the requirements of the law, right? Like, literally just in the cell being like, I don't want to go. Like, that was, that was their opportunity.

• 18:03Michael Liroff?

  That was their notice and opportunity was like 12 hours like that, right? Or like, they'd have to frantically Google what the conditions were in South Sudan to find out whether they should be afraid to be deported there, right? Like...

• 18:14Peter Shamshiri?

  Yeah, look, we're, yeah, we're like nerds, right? Like, if someone says, hey, I'm sending you to South Sudan, I know what's happening. If you're just like a random person from Guatemala or wherever, do you actually know what's going on in South Sudan? You have to fucking, you have to be like up on international affairs?

• 18:31Speaker 03

  Also, assuming that they even told you where the fuck you're being removed to, which they don't.

• 18:37Peter Shamshiri?

  Obviously, they're not telling them.

• 18:39Speaker 03

  Exactly. They're not even telling them, we're moving you, you're getting on a plane. Like, you're just, they just say, move. They're not even saying you're being deported right now, you know?

• 18:48Michael Liroff?

  In the case of OCG, I think they told him he was going to Mexico 15 minutes before he got on the bus.

• 18:54Speaker 03

  Yeah.

• 18:54Michael Liroff?

  Like, legitimately, like, 15 minutes. Like, that's it. Like, we're taking you to Mexico. And then 15 minutes later, he's on the bus heading down there.

• 19:01Speaker 03

  I mean, there are tons of instances of this. Like, it's happened to 25,000 people, is an estimate. Families say. Yesterday, I talked to him and he was in immigration detention. I knew where he was. And today, he called me and he's in another country. He's in Ecuador. He's in Guatemala. He's in Africa. It's so shocking, the like, lack of process, the lack of procedure, obviously.

• 19:25Peter Shamshiri?

  This should be unconstitutional on its face and illegal on its face.

• 19:29Speaker 03

  Yeah.

• 19:29Peter Shamshiri?

  Not just because of the lack of process, but because of the intent.

• 19:32Speaker 03

  Yeah.

• 19:33Peter Shamshiri?

  And this is something that constantly bubbles up in these cases, that all of these cases end up being about process and procedure, because you're not allowed to be like, you're obviously doing this for evil fucking reasons.

• 19:43Speaker 03

  Yeah.

• 19:44Peter Shamshiri?

  Right?

• 19:44Michael Liroff?

  Right.

• 19:44Speaker 03

  You're doing this to punish immigrants. You're doing this in violation of the principles that, like, the United States is a signatory on around asylum, granting asylum, you know, persecution from other countries and where people shouldn't be returned to.

• 20:00Peter Shamshiri?

  And everyone knows what's happening behind the scenes here, right? Which is like Stephen Miller and friends are like, right? What's the worst place we could send them? Right? South Sudan.

• 20:09Michael Liroff?

  Right.

• 20:10Peter Shamshiri?

  If you look at the list of countries, many of them are very clear. I mean, it's a combination of things. One is they're just finding countries who are willing to take people, right? Presumably in exchange for money or favor. But the other is countries where it's like notably unstable. Congo, Liberia, Rwanda, South Sudan, Sierra Leone. These are places where it's, it's going to be a struggle for any foreigner to navigate. That's the whole point of it. You know, we, we talked a ton last year about Cote, and that's just sort of like one example that got a lot of press, where the whole point was we're gonna send people to this country where there's an assurance of cruelty. The complete inversion of what the law is actually built to do. They want a guarantee of cruelty.

• 20:56Michael Liroff?

  Yeah.

• 20:57Speaker 03

  Yeah. And, you know, just one more point on like, taking advantage of countries where the situation is very unstable politically, socially, you know, otherwise. In some of the reporting on the, you know, let's just call it the diplomacy aspect of the Trump administration, sending diplomats with orders to pressure countries to accept these third country removals from the United States. There is also the threat being utilized, especially for the African countries, that if they don't accept, they'll be put on the travel ban list. The Trump administration will say, nobody from your country is allowed into the United States at all.

• 21:36Michael Liroff?

  Yeah. Also, I think it's worth noting that, like, I think in Libya in specific.

• 21:41Peter Shamshiri?

  Which is on the list.

• 21:42Michael Liroff?

  Right.

• 21:42Speaker 03

  Yes.

• 21:43Michael Liroff?

  A lot of the instability and violence there was also sparked or exacerbated by their agreement to accept detainees. Like, it became publicly reported that they're going to accept detainees, which sparked street violence, the killing of opposition leaders, like, crazy.

• 21:59Peter Shamshiri?

  Libya also already, like, again, just like a country that is basically known for its instability over the course of the last 15 years, for reasons we couldn't possibly explain.

• 22:11Speaker 03

  That's what I thought you might say, Michael, is like, not to mention that a lot of these countries that have instability are experiencing that instability because of the United States.

• 22:19Michael Liroff?

  Yeah, this isn't the first time that our policies have created or

• 22:23Speaker 03

  Yes.

• 22:23Michael Liroff?

  or contributed to the instability in these countries. But then this policy in specific is making it worse.

• 22:29Peter Shamshiri?

  I don't want to do something that sounds like both sides equivocation, but like, Barack Obama creating a power vacuum that collapses the state of Libya, and then Donald Trump sending immigrants there. There's a synchronicity that, I don't know, that feels, it's very like, this is American policy, right?

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• 27:06Peter Shamshiri?

  Case number two in our doubleheader, Rony v Barbosa de Cunha. This case is about what's called mandatory detention. Immigration law says that anyone who enters the country without being admitted must be detained without bond until their removal proceeding. Until recently, this law was only applied to new arrivals in the country, someone who tries to cross the border and is detained, for example. The Trump administration has started to apply it to anyone who arrived in the country without being formally admitted, meaning that if you entered the country illegally years ago, the Trump administration is claiming they can detain you without bond.

• 27:45Speaker 03

  Yeah.

• 27:46Peter Shamshiri?

  So, Riel, I'll hand it over to you again. A little bit of background here. Mandatory detention.

• 27:52Speaker 03

  This one, another Trump administration policy put in effect implemented last year. This one about mandatory detention of migrants. So another section of immigration law, we're talking about a different one in this case. Another section of immigration law lays out, like, removal proceedings and detention, pending removal proceedings, access to bond while you're detained, so you can be out of detention during the pendency of immigration or removal proceedings. So this provision of immigration law says that non-citizens, quote, "shall be detained for removal proceedings if the examining immigration officer determines that the noncitizen is not clearly and beyond a doubt entitled to be admitted to the United States."

• 28:37Speaker 03

  Note here, mandatory detention. The noncitizen shall be detained. But until last year, the US government, like, didn't apply this provision to non-citizens who had already entered the United States and, you know, maybe have spent years or even decades here. For those people, the government applied this different provision of the law about detention, which gives the government, like, power, discretion to release those people on bond during removal proceedings. If you're already here, you didn't get detained, like, at the border or very close to the time that you crossed the border. The US government generally said, you have access to bond. If you were put in removal proceedings and detained, you can pay a bond, you can get

• 29:22Speaker 03

  out while your removal proceedings are happening. So with this policy implemented last year by the Trump administration, anybody who entered without inspection has to be detained. We're talking mandatory detention without access to bond or due process, regardless of how long they've lived in the country or their ties to family and community here in the US. Politico, just in terms of this policy being challenged in the courts, Politico says that federal district judges have delivered more than 9,300 rulings against the administration's mandatory detention guidelines since they were put in place last year. The ACLU is a big organization out front, like, bringing this case to the Supreme Court.

• 30:05Speaker 03

  And they're saying, like, if this is allowed to proceed by the Supreme Court, then we're talking about millions of people will be subject to mandatory detention without access to bond hearings. So specifically in this case, for example, the named plaintiff, Mr. Barbosa de Cunha, he's a Brazilian national. He has been living in the United States for the last 22 years, is a small business owner. He has no criminal history. He has US citizen family members. He has never missed an immigration appointment or a hearing. He is now in detention, subject to mandatory detention, while the government tries to remove him from the United States. And if the Supreme Court greenlights this, then it's millions of people who are subject

• 30:49Speaker 03

  to this kind of disappearing.

• 30:51Peter Shamshiri?

  So let's talk about the law. Let's imagine that this isn't terribly cruel as a matter of, like, sort of obvious fact, and just think, well, what are, what does the law say about the administration's ability to do this? The statute in question here says that aliens not admitted into the United States must be detained without bond if an immigration officer determines they are not clearly entitled to enter the country. On its face, you might look at that in isolation and think, well, then, does the Trump administration have a point? Do they have the power to do this? Is it, in fact, mandatory that they do this? It says that they must be detained. The thing is that there's another provision of the statute that says an alien who is arrested and detained is eligible for bond. So which is it?

• 31:35Peter Shamshiri?

  Is it mandatory under the law to detain them without bond? Or are they eligible for bond? On the surface, these provisions sort of contradict, but the Second Circuit, when they look at this, said, look, it's clear from the context of the first provision, which requires that aliens be detained without bond. It's for newly arriving immigrants.

• 31:53Speaker 03

  Yeah.

• 31:53Peter Shamshiri?

  And the other provision applies to immigrants like Barbosa de Cunha, who have lived here for a long time or are already existing in the United States in some form. So the Trump administration is not really rigidly applying the law. What they're doing is ignoring one part of the law while rigidly enforcing the other part of the law.

• 32:12Speaker 03

  Yeah.

• 32:12Peter Shamshiri?

  So I think they're getting it wrong as a matter of statutory interpretation. It's not just like, this isn't a situation where they're just doing a really aggressive interpretation of the statute. They're ignoring the statute in part. They're just enforcing the parts they like. And then it should sort of go without saying, there are constitutional issues running through this, right? There are process concerns. You have people who have been living in this country for decades, to whom the Constitution unquestionably applies.

• 32:40Speaker 03

  Yes.

• 32:41Peter Shamshiri?

  And you're just holding them without bond for extremely long periods of time. And you have to imagine it would get longer if the government is allowed to let this policy perpetuate, because they're going to bring more people into the system, which will grind the gears of the system to a halt.

• 33:00Speaker 03

  Yeah, because of the influx.

• 33:01Peter Shamshiri?

  You could have a situation where people are waiting years without bond, right? People who are ostensibly protected by the Constitution. Clear due process violations there. I mean, it's like, not even, I don't even really want to discuss it. Like, if that doesn't violate due process, then what the fuck does?

• 33:18Speaker 03

  Right, yeah, exactly.

• 33:20Michael Liroff?

  Indefinite detention is so, like, disfavored by the Constitution.

• 33:25Peter Shamshiri?

  It's something that, like, in the context of, like, the world wars, was not, like, 100% clear.

• 33:30Michael Liroff?

  Dude, habeas corpus is in Article 1. You can't just detain people forever. In Article 1, not in any of the Bill of Rights, not in any amendment, whatever. It's right fucking there, like, you have a right to petition to get yourself out of detention. You can't just be detained indefinitely for no reason. It's like a core constitutional principle.

• 33:50Peter Shamshiri?

  There's some obvious threads tying these cases together. We wanted to talk about them, even though they will both be resolved this term, because, first of all, I think, like, it's important to keep your head above water on some of this shit.

• 34:03Speaker 03

  Yeah.

• 34:03Peter Shamshiri?

  And they feel like they flow out of the same basic policy, which is just the immiseration policy. We are going to make it a miserable, painful experience to be an immigrant in this country in order to dissuade people from coming here. It does appear to be working. I mean, immigration numbers are down. People across the world have a sense of this. Even basic, like, tourism is down, right? People are concerned about coming here and having their life upended by some nutjob ICE officer, which is a valid concern.

• 34:38Speaker 03

  Yeah.

• 34:39Peter Shamshiri?

  These policies feel like they are not entirely intended to accomplish anything specifically, as much as they are, like, a message to the rest of the world.

• 34:51Speaker 03

  Yeah.

• 34:51Peter Shamshiri?

  We were talking about during prep, like, what this means for, like, if a Democrat gets the reins in the next five years, in 2028, or even in 2032, or whatever. It's not just like, oh, we're undoing this policy. Because if you were a person who wants to move to America from the other side of the world, you know, fucking John Ossoff telling you, hey, no, we're nice now,

• 35:19Speaker 03

  Yeah.

• 35:20Peter Shamshiri?

  might not be valid assurance if you think, well, what if in 2032, Donald Trump Jr. comes into office?

• 35:28Michael Liroff?

  What if Stephen Miller just runs himself?

• 35:30Peter Shamshiri?

  Well, or someone with charisma, perhaps. In the coming years, we're going to be talking about undoing this. And it's not just going to be, like, executive orders saying, we're not doing this anymore. This is why you need to, like, abolish ICE, not just as a matter of morality, but also, like, functional systemic integrity. Like, there needs to be a signal to people in America and the rest of the world that, like, we're making systemic changes.

• 36:00Speaker 03

  Yeah, yeah.

• 36:02Peter Shamshiri?

  Even if you're putting the morality aside, what's happening to these people, and you're just being like a shallow neoliberal who's worried about, like, the markets or something.

• 36:11Speaker 03

  The economy.

• 36:11Peter Shamshiri?

  If you want this to continue to be a country that people come to when they, when they want to work, when they want to, you know, provide for their families. If you want this to be a place where we do cutting-edge research and shit like that, then you need to signal to the rest of the world, not only are we undoing this, but like, it won't return.

• 36:34Speaker 03

  Yeah.

• 36:34Peter Shamshiri?

  You're not going to do that with, like, ticky tack little fucking changes and a few executive orders.

• 36:38Speaker 03

  There's like a systemic permission that's given, right? Like, if they've pushed the ceiling on cruelty this much as ICE, as DHS, as the Trump administration, you can't just, like, then try to impose, like, a lower ceiling. The ceiling is the ceiling. Like, we've seen how far it goes, and they're going to push it as far as they can. And so this, you know, kind of a temporary stopgap or a temporary, you know, bump in the road. Yeah, yeah, which-

• 37:06Peter Shamshiri?

  Hey, we're doing trainings for ICE, like this.

• 37:08Speaker 03

  Yeah, it's not going to actually solve the problem, which also makes me think about the Supreme Court's role in this. I think we talked on the term preview episode as well about how, like, there wasn't like a big theme that screamed out at us from the upcoming term docket. But I think actually what you see already forming, and in the past year, since these, like, immigration policies have been enacted, is the Supreme Court on the shadow docket, and now substantively, and on the merits docket now, taking up these immigration cases, which I think will be like a defining hallmark, let's say, of this Supreme Court term,

• 37:50Speaker 03

  and how the Supreme Court aligns legally, or what the Supreme Court says, immigration law says, that allows Trump to continue to enact policies like this.

• 38:02Peter Shamshiri?

  There was an advisory opinions from last week titled "Not a MAGA Court", and it was David French and Eli Honig, who's CNN's chief legal analyst, and is an all-time schmuck, just like legendary dipshit.

• 38:19Speaker 03

  Yeah.

• 38:19Peter Shamshiri?

  I was like, I'm going to do my diligence and listen to this so that I can discuss it on the podcast. And then I listened to the first 15 minutes of it, and I thought I was going to have a fucking aneurysm, and they hadn't even gotten to the part that I was, like, trying to find. I put it aside and forgot.

• 38:35Speaker 03

  Yeah.

• 38:36Peter Shamshiri?

  But that's what I do for the listeners. I just want to put it out there. I'm out here listening to advisory opinions.

• 38:41Speaker 03

  Yeah.

• 38:41Peter Shamshiri?

  It's unbelievable.

• 38:42Michael Liroff?

  Yeah. I do want to take a moment to just, like, put both these cases in the context, and especially the indefinite detention case in the context of, like, the mass deportation program a little bit.

• 38:52Speaker 03

  Yeah.

• 38:53Michael Liroff?

  During Trump's, you know, 2024 campaign, we talked about, there aren't, you know, he promised 20 million deportations or whatever, and we said there weren't even 20 million people here who were undocumented, right? And we said there would be inevitably a campaign of ethnic cleansing, if he tried to enact that, that there would be lawful permanent residents and citizens swept up in it. And I think what we've seen is exactly that. There have been lawful permanent residents swept up. There have been citizens swept up. There have been efforts to take people who are here legally and turn them into undocumented people by rushing their hearings and things like that, and essentially kicking them out of legal status with onerous requirements,

• 39:37Michael Liroff?

  so that they can be deported.

• 39:39Peter Shamshiri?

  I mean, that's a huge part of the policy with respect to, for example, Haitians, right? We were talking about TPS.

• 39:44Speaker 03

  Oh, yeah, with TPS removal, yeah.

• 39:46Michael Liroff?

  We talked about how this couldn't be done without lots of detention, because you just can't deport that many people that fast. And you already see that with, like, the efforts to build a massive concentration camp at Fort Bliss. $1.2 billion, they're sinking into that with the hopes that it's done by September of next year. Efforts to do that, to build similar things in North Carolina and elsewhere. Indefinite detention just feels like the next step down the road. Like, we're rounding up as many people as we can. Whether or not they are actually undocumented, we'll sort it out later. We're sending people to third countries if we can. We're sending them home otherwise, or we're just holding them, right?

• 40:29Speaker 03

  Yeah.

• 40:29Michael Liroff?

  The next step is, we'll just round people up and throw them in camps and worry about deportations later. That's what Cunha, Barbosa de Cunha, is about. And if you can just do a little, like, thought experiment about letting this run, if you just let this run for, like, six years, right? Let's say Trump remains in office, or Trump Jr., or Vance, or whoever, you know, gets the next term and keeps Stephen Miller in place. What does this look like six years from now? You're talking about millions of people, like legitimately, millions of people in concentration camps, and a discussion about what to do with them. We can't deport them all. There's just nobody who's going to take them.

• 41:11Michael Liroff?

  This is legitimately the same arc as the Holocaust. Like, I don't say that lightly, and I don't say that to be dramatic. Like, this is legitimately what it is. We're just, like, moving step by step down the same path, and it's a fucking five-alarm fire. And it should be very concerning that the Supreme Court seems poised to rubber stamp, you know, the next little step down that road. Which is, I also think, why Peter's exactly right, that, like, the next Democratic Congress, the next Democratic president, or whatever. It's just not enough to play bipartisan footsie with Trump on ICE funding.

• 41:50Michael Liroff?

  It's not enough to have a nicer, kinder, gentler ICE deportation program for four years. Like, it's just not good enough. It's not good enough to keep the war machine humming, to keep the engine warm for the next fucking neo-Confederate Nazi freak to take charge of.

• 42:10Peter Shamshiri?

  And think about how they are ruling. They're sort of using fear and uncertainty to their advantage, not just directed at immigrants, but also at, like, other countries, right? If you don't cooperate with our third country removal policy-

• 42:29Peter Shamshiri?

  Maybe we squeeze your economy. That sort of thing needs to be counterbalanced with actual punishments for bad actors. There needs to be a countervailing fear. You want to join ICE? Fine. Enjoy the next couple of years of committing crimes without consequence because a couple of years after that,

• 42:49Speaker 03

  Yeah.

• 42:50Peter Shamshiri?

  there's going to be trials. We're going to run you through the fucking wringer. We're going to look at everything you've ever done and find any excuse to throw you in front of a judge. That sort of shit needs to be happening because without the promise of like retribution of consequences, everyone watching knows that it can happen again.

• 43:08Speaker 03

  Yeah. And it's not just this cruelty being doled out on immigrants in these direct policy ways in terms of like the policies that now apply to immigrants in the United States, but also, you know, this oppression, this cruelty is doled out in a different kind of like background way, which is squeezing and pressuring immigration lawyers and immigrant rights groups that provide legal assistance to immigrants. The Trump administration also sort of has attacked those kinds of groups and the practice of immigration law for the past year as well. And you see that where some of these immigration nonprofit legal organizations are at mere

• 43:51Speaker 03

  breaking points, if not have really, really had to downsize. You know, I think the Trump administration withdrew something like $200 million of federal funding that went to support the representation of migrant children last year. You know, this is a huge amount of money, obviously. And this means that literally immigration organizations have had to close their doors. There's also with all of these policies, it makes it very difficult for immigration attorneys to take certain cases. And also, you know, just in the systemic grind, I know we were talking about this during prep, but you know, this obviously fell on immigrants and their families, but it made it very, very difficult for attorneys to.

• 44:33Speaker 03

  I think it was like last week or maybe two weeks ago that ICE just shut down the online system that tracks where detained immigrants are, like all of them. Like you could look up online what detention facility your family member, your detained family member or your client was at. And then all of the sudden you couldn't. The system just was taken offline. And so, you know, there's all of these like systemic pressure points where not only are the policies that are being enacted, obviously, you know, the cruelty is the point, all of that kind of thing, but it's like every aspect, even the only resource that you might have, which is like a connection to an immigration attorney.

• 45:18Speaker 03

  Their, their jobs are literally harder and like impossible, impossible. You know, these things that like we talked about, like I have immigration attorney friends. We know immigration attorneys, like people I know, they say like this four-year-old was put on a plane I didn't know and she was deported. Right? Like I am the attorney, she has an attorney, this child has an attorney. Right? Or, you know, just all of these things, like the family couldn't find that, we couldn't find them. And then we realized that they had been flown to another detention facility across the country, you know? And so it's like, even if you did have a legal route, even if you did want to fight your case from detention, you know, even like every aspect of your lawyer's job is now harder.

• 46:02Peter Shamshiri?

  You can see this in other contexts too, where the sort of immiseration of liberal civil society is part of the goal. Immigration attorneys, yes, like scientists, right? Research dependent scientists, right? Like the civil service more broadly, like the goal is to create instability in these spheres to make it less enticing

• 46:25Speaker 03

  Yeah.

• 46:25Peter Shamshiri?

  for everyone. That's expressed, right? You can see that in a lot of the writing in and around Project 2025. The whole point is that if you wanted to go into a career of either public service or something adjacent to it, where your goals are sort of progressive in nature, they want to make that unpleasant.

• 46:46Speaker 03

  Yeah.

• 46:46Peter Shamshiri?

  They want to make that a bad career decision, more than it already was. For in the case of like immigration lawyers where it's already a tough fucking job.

• 46:54Speaker 03

  Yeah.

• 46:55Peter Shamshiri?

  You know?

• 46:55Speaker 03

  Yeah.

• 46:56Peter Shamshiri?

  They want to make that a miserable career decision. They want to push you away. That's sort of like the scale of what we're dealing with here. And yeah, I don't know. You don't always circle back to like, and so we can only do something. But you know, when I think of, when I think of like solutions, when I'm thinking, how do you get out of this? In the case of like the defunding of science, it's like, well, how do you get out of that? You dump three times the previous budget

• 47:20Speaker 03

  Yeah.

• 47:20Peter Shamshiri?

  into it.

• 47:20Speaker 03

  Right?

• 47:21Peter Shamshiri?

  Yeah. You say, yeah, we're going to scrape a little bit out of fucking ICE's budget or whatever.

• 47:25Speaker 03

  Yeah.

• 47:25Peter Shamshiri?

  And we're going to pour it onto science. You know, you take a slice of the budget, a few billion bucks, you dump it into due process for immigrants. Right?

• 47:33Speaker 03

  Yeah.

• 47:34Peter Shamshiri?

  Like shit like that needs to be done. It can't just be that we, you click undo and you're like, phew, that was close.

• 47:40Speaker 03

  Yeah.

• 47:40Peter Shamshiri?

  Almost, almost did a Hitler.

• 47:42Speaker 03

  Exactly. Exactly. And, and you know, maybe just like my final thought is like the systemic solutions we're talking about, like that require some creativity, there needs to be some creative systemic solutions applied to the Supreme Court too.

• 47:57Michael Liroff?

  That's right.

• 48:02Peter Shamshiri?

  Next week, we're talking about something that's been in the news. The proposed public execution of Nadal Hassan, the Fort Worth shooter. We're going to be talking about the history of public executions. We're going to be talking about the botched execution of Krista Pike and the just sort of spectacle of cruelty that the administration is putting on display with this shit. Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. See you next week.

• 48:44Michael Liroff?

  Bye, everybody. Five to Four is presented by Prologue Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.