“What hope, if any, do those that were shipped off to El Salvador without due process have of being heard, and/or returned?”
— M. Walker
Hi M.,
The answer to that question is currently playing out in court.
Lawyers for people detained at El Salvador’s notorious Terrorism Confinement Center have a motion pending before U.S. District Judge James Boasberg. They want the Washington, D.C., judge to order the government “to immediately request and take all reasonable steps to facilitate” their return.
Specifically, this motion is about noncitizens summarily deported under President Donald Trump’s invocation of the Alien Enemies Act against alleged Venezuelan gang members. (Kilmar Abrego Garcia, a Salvadoran native illegally sent to that country as well, has separate litigation against the Trump administration’s continued resistance to facilitating his return.)
Notably, a different judge this week said that Trump’s invocation of the 1798 act against the Venezuelans was “unlawful.” The ruling from U.S. District Judge Fernando Rodriguez Jr. — a Trump appointee — was significant because it exposed the underlying illegality of the president’s invocation.
Rodriguez’s ruling applies to a class of plaintiffs in his south Texas district, blocking their removal under the act. So, while his ruling wasn’t about bringing people back who were already wrongly deported, it can be helpful to people litigating the Alien Enemies Act issue generally — if it survives any appeal by the government. Undeterred by Rodriguez’s ruling, Trump administration lawyers argued to Boasberg on Thursday that the president “had ample basis” to invoke the act. And despite Trump’s close relationship with Salvadoran President Nayib Bukele, they’re telling the courts that their hands are tied. “Those aliens are in the custody of a foreign nation pursuant to its laws,” they wrote to the D.C. judge Thursday, arguing that the U.S. “does not have custody so there is no jurisdiction.” Boasberg ruled against the government during a previous round of litigation. If he’s inclined to do so again, he can cite Rodriguez’s ruling as persuasive authority backing his decision. At publication time, Boasberg had not yet ruled on this latest motion. But whatever he does, the Supreme Court can have the last word. That’s true for Rodriguez’s ruling, too. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal Blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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