When a judge starts a lengthy ruling by quoting from Franz Kafka’s “The Trial,” a novel associated with an absurd legal ordeal, that could be a bad sign for the government. And so it was, in the 69-page opinion Wednesday from U.S. District Judge James Boasberg. It marked a step toward righting the Trump administration’s wrong of sending scores of Venezuelan immigrants to a notorious Salvadoran prison without due process.
While citing what he called the administration’s “troubling conduct throughout this case,” Boasberg said U.S. officials must facilitate the ability of a class of at least 137 plaintiffs, held in El Salvador’s Center for Terrorism Confinement (CECOT), to seek habeas corpus relief, so that they can challenge their removal under the Alien Enemies Act. They didn’t get due process when the government summarily sent them to that foreign prison in March, so they need to get it now. The chief federal judge in Washington, D.C., left open how exactly that will happen, giving the government a week to tell him how it plans to carry out his directive.
President Donald Trump’s invocation of the 1798 act, whose factual and legal bases for deporting alleged Venezuelan gang members have been called into great doubt, still hasn’t been resolved by the Supreme Court.
Boasberg didn’t seek to resolve that underlying issue Wednesday, instead focusing on the fact that the men didn’t even get a chance to challenge their removal. “Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, [government] Defendants are correct that Plaintiffs are gang members. But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government’s say-so,” he wrote.
“In our nation — unlike the one into which K. awakes — the Government’s mere promise that there has been no mistake does not suffice,” the Obama appointee wrote, referring to Kafka’s protagonist.
The judge said the government “plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States.” He added that while the litigation still needs to fully play out, “significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.” Separate litigation is pending over Boasberg’s inquiry into possible contempt for the government violating his previous order in March to halt deportation flights.
Boasberg’s latest ruling comes as the administration resists facilitating the return of Kilmar Abrego Garcia, as ordered by another judge — whose order the Supreme Court endorsed — in separate ongoing litigation. The Salvadoran native was also illegally deported to that country, but not under the Alien Enemies Act.
In yet another case of a wrongly deported person under this administration, the government on Wednesday managed to return a Guatemalan man referred to as O.C.G. in court papers; his case was litigated separately from both the Abrego Garcia case and the Alien Enemies Act cases. U.S. immigration agents sent him to Mexico, initially claiming he said he wasn’t fearful of going to that country, but then admitting that they didn’t have a witness who could back up that claim.
So the administration knows it can remedy a wrongful removal. But given that the CECOT plaintiffs, like Abrego Garcia and unlike O.C.G., are being held by a foreign government, don’t expect the government to go along with Boasberg’s order before exhausting all appellate options — including up to the Supreme Court, though even the justices have reminded the administration of the need to comply with due process. We should know the government’s stance at least within a week, when its notice is due to Boasberg by June 11 on how it intends to facilitate the ability of the CECOT plaintiffs to seek habeas relief, unless the administration seeks a more immediate appeal of Boasberg’s order.
Separately, the administration has a pending emergency application to the Supreme Court, seeking the ability to more speedily deport people to so-called third countries where they aren’t from, in litigation stemming from the government’s bid to send immigrants to war-torn South Sudan. An order from the justices in that case could come anytime.
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This article was originally published on MSNBC.com