On Saturday evening, federal judge James Boasberg unambiguously ordered the Trump administration not to deport any Venezuelans using an extreme wartime presidential power. Boasberg made clear that the order applied even if it meant turning around planes that were already in the air. The Trump administration ignored the order.
Officials kept jets carrying Venezuelans flying towards El Salvador, where right-wing President Nayib Bukele has struck a deal with the US to house the immigrants in an infamous prison. The deportees had their heads shaved upon arrival in a dystopian video that was quickly promoted by Secretary of State Marco Rubio and the White House.
Senior Trump officials have left little doubt that they willfully disobeyed. “We are not stopping,” White House border czar Tom Homan said on television on Monday. “I don’t care what the judges think. I don’t care what the Left thinks. We’re coming.” President Donald Trump has now called for Boasberg to be impeached, writing on social media, “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President.”
Lee Gelernt, the ACLU attorney representing the Venezuelans suing to prevent their deportation, made the stakes clear on Monday. “I want to choose my words very carefully,” Gelernt told the court. “There’s been a lot of talk over the last few weeks about constitutional crises. I think we’re getting very close to it.”
“It’s essentially, sending someone, we believe, outside of the United States with no due process. With no ability to refute the allegations against them.”
Boasberg issued his oral order blocking removals at about 6:45 pm Eastern Time on Saturday. “You shall inform your clients of this immediately,” he said. “However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you.” A written order to the same effect appeared on the court’s docket about forty minutes later.
Flight data analyzed by the Washington Post shows three removal flights taking off from Texas on Saturday, landing in Honduras, and then continuing on to El Salvador. Two of those flights were en route to Honduras at the time of the court order. They then took for El Salvador despite Boasberg’s command that they be turned around. The third flight appears to have taken off in Texas about 50 minutes after Boasberg’s oral order.
The administration alleges that the last flight did not carry any Venezuelans covered by the ACLU’s suit. In a filing on Tuesday, the Trump administration said two of the planes departed before 7:25 pm, and the one that departed after the judge’s written order had only individuals who were not being “removed solely on the basis of” the proclamation.
At a Monday afternoon hearing before Boasberg about the flights, the Trump administration made an absurd and unconvincing case for why not turning around the flights complied with the court orders. Deputy Associate Attorney General Abhishek Kambli argued that because Boasberg only ordered flights to turn around orally—and not explicitly in writing—the administration was free to keep them flying to El Salvador. “The idea that because my written order was pithier it could be disregarded,” Boasberg replied, “that’s one heck of a stretch.”
Kambli also suggested on Monday that the administration officials felt entitled to ignore Boasbaerg because the first two planes headed to El Salvador were allegedly outside of US territory by the time the judge weighed in. Georgetown Law professor Steve Vladeck has made clear that it is essentially nonsense to claim that Boasberg lost authority over government-chartered planes as soon as they left US airspace.
Nor does the administration have the legal authority to ignore a federal judge because they think he’s wrong. They must comply with court orders and then file appeals in the hopes of having them overturned. Instead, the administration defied Boasberg. As a senior Trump official told Axios over the weekend, “There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs.”
Bosaberg responded on Monday by ordering the government to provide information about the deportation flights or, if the administration refused to do so, to submit an explanation as to why the information could not be provided. The government respond by largely doubling-down on its logic. The Trump administration also said that because their appeal is pending, “the Government should not be required to disclose sensitive information bearing on national security and foreign relations until that motion is resolved, especially given that this information is neither material nor time-sensitive.” In a
Amidst the legal back and forth, it is easy to lose sight of what led the ACLU and Democracy Forward to sue in the first place. The removal flights to El Salvador resulted from the White House quietly invoking the Alien Enemies Act on Friday. The law, which came into force shortly before the now infamous Sedition Act of 1798, had only been invoked three times in US history before: during the War of 1812; World War I; and World War II. The White House has said that 137 Venezuelans have been deported so far under it.
Trump is providing no due process for Venezuelans who are accused of being members of Tren de Aragua. It means that they can be deported without ever having a chance to make their case to a judge. That is particularly disturbing because the administration’s now largely abandoned plan to deport Venezuelans to the Guantanamo Bay Naval Base made clear that US officials often appear to be falsely accusing people of being gang members.
The Venezuelans sent to El Salvador in defiance of Boasberg now face a terrifying reality as they are indefinitely held at a mega-prison notorious for human rights abuses, while cut off from lawyers in the United States. Lindsay Toczylowski, the president and CEO of the Los Angeles-based Immigrant Defenders Law Center, told Mother Jones on Monday that her organization is representing a Venezuelan asylum seeker who she believed was in that position after entering the United States last year.
Toczylowski said the client, whose name she is withholding due to fear of potential retaliation, had been detained in the United States last year after being falsely accused by US immigration officials of being a gang member because of tattoos. In reality, she explained that the asylum seeker, who previously worked in the arts, had tattoos “that you really could see on any art student in LA or New York.”
“They’re fairly benign. Clearly not gang tattoos,” Toczylowski continued. “But we never got to the point where we could dispute that fact because our client was supposed to have court on Thursday. And when our attorney went to court, the client was not produced by ICE.”
By the time of the Thursday hearing, Immigrant Defenders’ client had already been moved to Texas. They learned on Friday that he had been moved again but they were unable to determine to where. By Saturday morning, he had disappeared from ICE’s detainee locator system.
“This is someone whose had a lawyer the entire time,” Toczylowski stressed. “It’s truly a terrifying development in deportation [procedures]. It’s essentially, sending someone, we believe, outside of the United States with no due process. With no ability to refute the allegations against them. And in the case of our client, it’s happening to someone that we can definitively say has been wrongly accused of being in a gang.”
Later on Monday, around the same time Boasberg was hearing from the Trump administration, Immigrant Defenders’ and the Venezuelan asylum seeker were supposed to be in immigration court again. This time, his legal team got confirmation from the government: Their client is in El Salvador. They have no way to contact him, or any idea what will happen to his theoretically still pending asylum claim. A man with American lawyers has effectively disappeared into a Salvadoran gulag in defiance of a federal court order.
