When the Trump administration sent hundreds of Venezuelan nationals to a notorious Salvadoran prison in March, it did so without first providing them due process to challenge their removals. A judge’s order this week gives the administration two weeks to submit a proposal for how to provide that process now.
While relatively straightforward as a matter of law, it’s logistically complicated by the fact that the men are back in Venezuela after initially being sent to El Salvador’s Terrorism Confinement Center, also known as CECOT (the subject of the infamously spiked “60 Minutes” segment).
Therefore, U.S. District Judge James Boasberg gave the government options for how to proceed.
He didn’t demand that the administration facilitate their return, as a judge famously did for Kilmar Abrego Garcia – though Boasberg gave that as one option to satisfy the government’s obligations. The Obama-appointed judge also said the government could “offer Plaintiffs a hearing without returning them to the United States so long as such hearing satisfied the requirements of due process.”
The judge noted that some people might prefer to stay in Venezuela but that they needed the opportunity to assert their rights if they want to. “On the merits, the Court concludes that this class was denied their due-process rights and will thus require the Government to facilitate their ability to obtain such hearing. Our law requires no less,” he wrote in an opinion published Monday.
Similarly, in rejecting the administration’s argument that the matter is moot, Boasberg pointed out that there are ongoing consequences from President Donald Trump’s invocation of the Alien Enemies Act against them as alleged members of the Tren de Aragua gang. The judge noted that Trump’s proclamation carries restrictions, including barring U.S. entry and residence and subjecting them to property seizure and forfeiture. “If Plaintiffs were to succeed in their challenge to their designation as TdA members and alien enemies, these ongoing injuries would be remedied,” he wrote. Boasberg’s latest order in the long-running saga follows the recent thwarting – for now – of his inquiry into potential criminal contempt for officials who violated his order not to relinquish physical custody of the Venezuelans in El Salvador in March. The judge was set to take testimony in his contempt inquiry earlier this month, before an appellate panel with two Trump appointees in the majority put the proceedings on hold while it further considers the administration’s appeal. The contempt issue is separate from Boasberg’s latest order requiring the provision of due process, but given the government’s resistance to the judge’s orders throughout this litigation, the government’s compliance remains to be seen. 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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