Third-country deportations to poor African nations and especially to failed states are just inhumane. But Trump is using the continent as a “dumping ground” for migrant criminals he seeks to deport. Already, he has sent migrant criminals to danger-ridden South Sudan with the blessing of the Supreme Court—at least for the time being. And now he has added the tiny Kingdom of Eswatini. It confirmed the transfer from the U.S. of five migrant criminals who were citizens of Vietnam, Jamaica, Cuba, Yemen, and Laos.
Meanwhile, as Pulitzer Prize-winning journalist Walter Pincus points out, the practice is in “legal limbo.”
Eswatini, known by its former official name Swaziland, is a landlocked country in Southern Africa ruled by its 57-year-old polyamorous King Mswati III, the last of the continent’s absolute monarchs. Mswati’s family includes 15 wives. He enjoys a lavish lifestyle, while most of the country’s 1.2 million people are impoverished. The World Bank said over half of Eswatini’s 1.2 million people live on less than $4 daily. Ramza Matimela, Secretary General of the Swaziland Liberation Movement, now living in exile in Ireland, called the King, “a greedy leader who wants to accumulate everything for himself…”
“The U.S. government sees us as a criminal dumpsite and undermines [the people of Eswatini],” said Wandile Dludlu, a pro-democracy activist and deputy president of the country’s most significant opposition movement, which the King has banned.
No wonder the State Department advises Americans to exercise increased caution when visiting Eswatini because of crime and civil unrest. The Department’s 2023 Human Rights Report’s section on Eswatini noted “credible reports of: arbitrary or unlawful killings, including extrajudicial killings; torture and cruel, inhuman, or degrading treatment or punishment by the government.”
The incoming deportees will only add to the notoriously overcrowded prison facilities. Figures show that prisons in Eswatini operate at more than 170 percent of their capacity.
No agreement has surfaced providing for the deportation of migrant criminals from the U.S. to Eswatini. Still, it is safe to surmise that some money changed hands, like the $6 million deal last February with El Salvador to send 300 Venezuelan deportees to that country. Will the payment go through a crypto venture or a sovereign wealth fund? With small economies and a desperately poor populace, African countries like Eswatini and South Sudan are chopped liver for a bullying White House eager to impose its will.
Homeland Security Department Assistant Secretary for Public Affairs Tricia McLaughlin described the five sent to Eswatini as “individuals so uniquely barbaric that their home countries refused to take them back,” adding, “These depraved monsters have been terrorizing American communities, but thanks to POTUS [President Trump] and [Homeland Security Secretary Kristi] Noem, they are off of American soil.”
One would have thought that American prisons were up to the task for this without the need for rendition to third countries. The migrants are no more “barbaric” or “depraved” than our general prison population.
True, the “depraved” five were convicted of serious crimes in the United States, and many had either finished or were about to finish serving their sentences. But there is no statement from the White House on why they could not be sent home upon release or perhaps to a less dangerous relocation.
Then, there is the group known as the “South Sudan Eight.” One was from South Sudan, but the others were from Cuba, Mexico, Laos, Myanmar, Sudan, and Vietnam.
Under the Immigration Act, the government can conduct what is known as a “third country removal,” but only under narrow circumstances. Such removals are permissible only after the government has considered every alternative noted in the statute and determines that they are all “impracticable, inadvisable, or impossible.”
Non-citizens facing removal can claim, if given the opportunity, that there are substantial grounds that they would be in danger of torture or cruel punishment in the proposed third country.
On May 20, U.S. District Judge Brian Murphy in Massachusetts, who issued a temporary restraining order in April that barred migrant deportations from the U.S. to countries other than their own, held an emergency hearing on the South Sudan Eight. A lawyer for the Vietnam deportee said his client was given less than 24 hours’ notice of his removal and could not contest it in his native language.
The next day, Judge Murphy ruled that the South Sudan Eight fell under his April order barring migrant deportations and that they should be held for interviews. As a result of Judge Murphy’s order, the aircraft carrying the migrants from Texas to South Sudan was diverted to an American military base in Djibouti, Africa. There, the eight remained under guard for weeks while the Trump administration took their opposition to Murphy’s restraining order to the shadow docket of the Supreme Court, where there is rarely a full briefing, oral argument, or an opinion expressing the reason for the outcome.
On June 23, by a 6-to-3 vote, the Court reversed Judge Murphy’s order requiring the government to halt third-country deportations until there was a settlement on the pending legal issue of whether migrants are required to have a “meaningful opportunity” to tell officials what risks they might face being deported to a third country.
The super majority did not give their reasoning. But Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, dissented in an 18-page opinion that began with the truism: “In matters of life and death, it is best to proceed with caution.”
Sotomayor first acknowledged that the Trump administration had defied two court orders in the case: “Even if the orders in question had been mistaken, the Government had a duty to obey them until they were reversed by orderly and proper proceedings. That principle is a bedrock of the rule of law. The Government’s misconduct threatens it to its core,” she wrote.
Sotomayor then went on:
Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires [meaning the underlying issue of requiring a chance to challenge deportation], this Court now intervenes to grant the Government emergency relief from an order [Murphy’s temporary restraining order] it has repeatedly defied. I cannot join so gross an abuse of the Court’s equitable discretion.
While the South Sudan Eight are now in that country facing an unknown fate, the case before the District Court remains whether the government is required to allow potential third-country deportees to object. Of course, by now, it may all be moot.
The Supreme Court gave the government the green light. Lawyers for the migrants had contended that the men’s “lives and safety…are at imminent risk,” arguing that the policy violated both the Constitution and statutory law. In 1998, Congress passed the Foreign Affairs Reform and Restructuring Act to implement its commands. The Act provides that “[i]t shall be the policy of the United States 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.”
Sotomayor stressed the potential for harm to the immigrants involved, which the Court ignored. South Sudan is a war-torn country that “the State Department considers too unsafe for all but its most crucial personnel.”
Meanwhile, renditions to dangerous third countries are likely to continue. If the class of migrants eventually prevails on the merits, it will be too late for those who have been sent to the likes of Eswatini and South Sudan. (Trump has discussed third-country deportation deals with the leaders of Liberia, Senegal, Guinea-Bissau, Mauritania, and Gabon during a summit with West African nations at the White House this month.
Trump’s border tsar, Tom Homan, said the administration hoped to forge deals with “many countries” to accept deported migrants.
“If there is a significant public threat or national security threat, there’s one thing for sure: They’re not walking the streets of this country. We’ll find a third, safe nation to send them to, and we’re doing it,” Homan said. What is a “safe nation” is evidently in the eyes of the beholder.
George Orwell wrote that the word “fascism” has “now no meaning except in so far as it signifies ‘something not desirable.’” By that definition, what Trump is doing is pure fascism.
