Will COFA protect against ICE? Time to tread carefully

Pacific Reflections By Gabriel McCoard

I was so close to saying that the Pacific has been quiet this past month, with the usual stories popping up about climate change, foreign aid donations framed as economic development, military buildups on Saipan, but not much else.

   Then, in mid-July, a friend sent me an article by Giff Johnson in Radio New Zealand, titled “ICE Deportation Actions Land Marshallese, Micronesians in Guantanamo.”

The headline sums it up pretty well: U.S. Immigration and Customs Enforcement has repurposed Guantanamo Bay into a holding facility for immigrants being deported somewhere. Keyword being "somewhere."

This is just the latest incarnation for the U.S. Naval Base on the southeastern tip of Cuba, a symbol of America’s newfound empire when the U.S. demanded Cuban territory as a wartime concession after the Spanish-American War 130 years ago.

Remembered as the prison for people captured in Afghanistan following Sept. 11, Micronesians might recall Guantanamo for the Uyghur dissidents, Muslims from Xinjiang Province in western China, who found themselves in Afghanistan, then Guantanamo, then Palau during a bout of financial aid negotiations under the Compact of Free Association. Temporarily, that is. Before they left. Being near stateless sort-of refugees made their lot in life complicated.

The article observed that deportees are being moved en masse via military planes, rather than the traditional method of agents individually escorting deportees on commercial flights.  This naturally raises the question whether deportations violate open immigration rights under COFA.

They don’t.

Then I noticed an article from the Pacific Island News Agency's bulletin: “US may now deport migrants with just six hours’ warning as Tonga’s potential travel ban talks remain under wraps.”

Briefly put, this is what it is: Several months ago, Trump announced travel bans for citizens of several dozen nations he believes present U.S. national security risks in the form of direct threats, lax issuing of passports, visa overstays, or refusal to accept deportees from the U.S., especially their own citizens.

After some wrangling between officials over who should handle this, Tonga has not publicly stated its plans.

While it’s easy to dismiss Tonga as thinking it has leverage, the White House has said that countries can avoid being added to the list if they make certain improvements. Which is to say, national security is now a negotiating tactic.

On July 9, ICE issued a memo stating that ICE could deport an individual with as little as six hours’ notice to a third-party country, not the individual’s home, if there are “exigent circumstances” the individual has been convicted of a serious crime and is subject to a deportation order, the receiving country promises not to torture or persecute the individual, and the individual has the chance to speak with a lawyer.  

The promise not to torture is reminiscent of the 1951 Convention Relating to the Status of Refugees, which enshrined the policy of non-refoulement, that is, not returning or sending people to a place where they could face such persecution, such as torture. But that is limited to refugee and asylum claims, and there are exceptions when an individual poses a danger to the community.

A quick scouring of the web revealed more articles about the memo, but not the memo itself. I was not surprised. Accurate information is hard to find. The Information Age teased us for 30 years before morphing into the Epoch of Controlled Digital Access. I’ll work on the acronym.

Having practiced U.S. immigration law, I can say that filing something, likely in federal court, to stop it in less than a business day is a tall order. Unlike tariffs, Trump’s immigration threats have come to life pretty quickly. And his promise, or specter, of one million annual deportations would quickly dwarf the number of people in U.S. prisons. It’s inevitable that more than violent criminals and those in the U.S. legally, will get swept up.

How carefully ICE will confirm identities remains a question.

But what about immigration under COFA? U.S. military access to most of the Pacific Ocean, paired with open immigration rights for citizens of the freely associated states, are the hallmarks of the Compacts, after all. That and money, of course.

Aren’t COFA citizens exempt from being deported?

Not really. Every nation has the right to enforce its laws, and if someone has been convicted of a serious offense triggering deportation, COFA does not prevent it. Micronesia is rife with stories of those who cannot legally enter the U.S., and the voluntary deportations from Guam, particularly to Chuuk, only highlight this.

Not to mention the use of multiple names and a passport office that isn’t the strictest about identity verification, like claiming to be a relative to get a passport under a different name.

There’s a further cautionary tale for all of Micronesia as well: swearing before a judge that you go by another name and getting a new passport might not work anymore.

Gabriel McCoard is an attorney who previously worked in Palau and Chuuk State. Send feedback to gabrieljmccoard@hotmail.com.

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