by Irvin Muchnick
Americans and others around the world are rightly alarmed by the levels of police state tactics in the Donald Trump 2.0 administration. These measures are matched in history only by the periods of the Red Scare of the 1950s, the Japanese-American internments of the 1940s, and the Palmer Raids of 1919-1920.
Disregard of due process crystallized in the deportations to a contract prison in El Salvador of Venezuelans accused of being criminals. The government’s accusations against the deported were self-conclusory. Some had no basis except that the deportee bore gang-related tattoos (and in some of those cases, the “evidence” turned out to be things with no gang relationship, such as Chicago Bulls basketball team-branded accessories). Trump invoked the Enemy Aliens Act of 1789, a statute never before so cited in peacetime. When a federal judge ordered the deportations halted, the government simply defied the order.
Then there’s the case of the Tufts University doctoral student from Turkey who was accosted on the street in Somerville, Massachusetts, by Immigration and Customs Enforcement (ICE) agents, zip-tied, and whisked to a detention center in Louisiana, without access to a lawyer. The crime of Rumeysa Ozturk, who has a student visa, appears to have been co-authorship of an opinion article in a campus newspaper criticizing Israel’s genocide in Gaza.
The attempted new standard is that non-citizens have zero constitutional rights. It doesn’t matter if they have legal visa or even resident green card status. (And Trump has proceeded to float the prospect of abrogating the rights of citizens, as well.)
So this is an appropriate moment to remind readers that the hyper-aggressive ICE has been somewhat less aggressive – indeed, has been defiantly passive – in the past in determining criteria for removal from the country of certain non-citizens. This double standard was dramatic in the 2010 case of former Irish Olympic swimming coach George Gibney, whom I call the most notorious at-large sex criminal in sports history.
Documents acquired in my 2016-17 Freedom of Information Act lawsuit against the Department of Homeland Security revealed that ICE was the sole impediment to the federal immigration bureaucracy’s consideration of rescinding Gibney’s resident status after he got caught lying in his application for naturalized citizenship – a lie that caused U.S. Immigration and Citizenship Services (USCIS) to reject the application.
Gibney had arrived in the U.S. in 1995 on the heels of a controversial ruling by the Irish Supreme Court that undid his prosecution on dozens of counts of alleged sexual abuse of underage victims. He had managed to land a “diversity lottery visa” just before he would have been forced to disclose on that application that he was under criminal indictment in Ireland.
By the time he applied for citizenship 15 years later (perhaps as part of an effort to inoculate himself from a two-continent campaign to have him extradited for purposes of another round of prosecution), his early 90s arrest and indictment could no longer be hidden. Evin Daly, the Irish native who runs the One Child International advocacy group in Florida, informed federal officials about Gibney’s Irish past, which he failed to disclose on his citizenship application.
USCIS’s Orlando field office invited Gibney to redo his application and correct the gap in his representations. He did not do so. Ultimately, USCIS referred to ICE the fate of his continued U.S. residency.
My FOIA case uncovered a July 20, 2010, letter from an ICE official regarding the agency’s consideration of Gibney’s eligibility for removal from the country on the basis of having materially lied on his citizenship application. ICE decided that there was predicate for such a consequence: since Gibney had “no criminal convictions which would render him removable from the U.S. … this referral does not meet the current case acceptance criteria.” (Italics added.)
Anyone familiar with the body of ICE’s work and the general practices of all federal immigration agencies knows that this supposed threshold of criminal conviction has never been applied across the board. My FOIA judge, Charles R. Breyer, commented from the bench: “I have to assume that if somebody has been charged with the types of offenses that Mr. Gibney has been charged with, the United States, absent other circumstances, would not grant a visa. We’re not a refuge for pedophiles.”
Breyer added that he even knew of cases in which passports had been revoked from citizens for significant misrepresentations to the government. “Given Gibney’s past,” the judge said, measuring his words, there was “enough to warrant a belief by a reasonable person that — perhaps — more should have been done.”
In the case of Gibney, ICE spearheaded the result that we did become a refuge for a pedophile.
We are, however, no longer a refuge for someone residing here, legally and above-board, on a student visa, who utilizes First Amendment rights to criticize the Israeli government from Massachusetts soil.
