Judges keep reminding the Trump administration to comply with due process. In the latest example, a judge also reminded the administration that it has only itself to blame for the mess it created.
The backdrop of the latest legal reminder is the administration’s violation of a court order in trying to send migrants to war-torn South Sudan without proper notice or opportunity to contest their removal. The migrants are reportedly now being held at a U.S. military base in Djibouti.
“Defendants have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry,” U.S. District Judge Brian Murphy wrote in an opinion published late Monday. “By racing to get six class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order, Defendants gave this Court no choice but to find that they were in violation of the Preliminary Injunction,” the Biden appointee wrote.
Murphy reminded the government that he still hadn’t ordered it to bring the people back to the U.S., as the migrants’ lawyers had asked. “Instead, the Court accepted Defendants’ own suggestion that they be allowed to keep the individuals out of the country and finish their process abroad,” the judge wrote, using italics in his ruling. He went on to note that the government has since “changed [its] tune” because, he wrote, “It turns out that having immigration proceedings on another continent is harder and more logistically cumbersome than Defendants anticipated.”
The judge emphasized that he “recognizes that the class members at issue here have criminal histories. But that does not change due process.” Murphy said he hoped “reason can get the better of rhetoric” as he denied the government’s motion to reconsider his prior rulings on the matter.
“Because of this Court’s Orders, Defendants are currently detaining dangerous criminals in a sensitive location without clear knowledge of when, how, or where this Court will tolerate their release,” the administration wrote in its unsuccessful reconsideration motion. “This development has put impermissible, burdensome constraints on the President’s ability to carry out his Article II powers, including his powers to command the military, manage relations with foreign nations, and execute our nation’s immigration authorities,” it said, contending that the government’s actions have been lawful.
It’s not the first time that a judge has accused the administration of mischaracterizing judicial orders in the context of deportations and due process. In the case of Kilmar Abrego Garcia, whom the government illegally removed to El Salvador in March and whose return it has resisted facilitating, the district judge likewise criticized the government’s “mischaracterization of the Supreme Court’s Order” requiring that facilitation.
Of course, Abrego Garcia is not the only one whose return the government has been ordered to facilitate. In fact, Murphy’s ruling Monday follows his order Friday to facilitate the return of another plaintiff in the case — a gay Guatemalan man listed as O.C.G. in court papers — whom the government sent to Mexico even though he said he had been held for ransom and raped there. The government initially said O.C.G. wasn’t afraid to go to Mexico, but it later admitted that it had no witness who could testify to that.
“Defendants’ retraction of their prior sworn statement makes inexorable the already-strong conclusion that O.C.G. is likely to succeed in showing that his removal lacked any semblance of due process,” Murphy wrote Friday. “Due process is, in some sense, a binary — one either receives what the Constitution requires, or one does not,” he wrote, adding, “It has been clear that O.C.G. did not receive what the Constitution requires.” So once again, the administration’s attempt to avoid compliance with legal process meets judicial resistance. And once again, the consequences for the government are yet to be fully determined. The administration is hoping the Supreme Court will bail it out this time. On Tuesday, the government launched its latest emergency appeal to the high court, seeking to block Murphy’s injunction. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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