The Trump administration said it cannot comply with a federal judge’s order to provide dozens of deported Venezuelan migrants the opportunity to challenge their removals in an American court, saying in a legal filing late Monday night that such efforts would be impossible after U.S. forces deposed the Venezuelan leader Nicolás Maduro this month.
Secretary of State Marco Rubio said in a sworn declaration that efforts to bring 137 of the more than 250 deportees from Venezuela to the United States for court hearings, or to arrange remote hearings from their native country, “would risk material damage to U.S. foreign policy interests in Venezuela.”
“The United States remains involved to see changes in Venezuela that are beneficial to the United States and that it also expects will be beneficial for the people of Venezuela, who have suffered tremendously,” Rubio said. “These efforts entail ongoing, intensive, and extraordinarily delicate engagement with elements within the regime of Maduro’s successor, so-called Acting President Delcy Rodríguez.”
It is not the first time Trump administration officials have refused an order from Chief U.S. District Judge James E. Boasberg of the District of Columbia since the case began in March.
Immigration officials had flown four planeloads of Venezuelan migrants to a notorious megaprison in El Salvador after President Donald Trump invoked a rarely used statute, the Alien Enemies Act, and claimed the migrants were gang members. Those deportees, who were not given advance notice or an opportunity to challenge their removals in federal court, were sent to El Salvador despite an order from Boasberg not to do so and were then transferred to Venezuela in July.
The case has been winding through the courts for nearly a year. Boasberg issued a ruling last month saying the migrants were “denied their due-process rights” and had to be located and given the chance to challenge their deportations in federal court. “Our law requires no less,” the judge said, suggesting that U.S. officials could set up remote hearings from Venezuela.
But Rubio and the Justice Department said that after U.S. forces captured Maduro and his wife and transported them to Manhattan to face drug-trafficking charges, the logistics of setting up in-person or remote hearings for the migrants had become untenable. Civilian travel out of Venezuela has been restricted since Maduro’s ouster, Justice Department lawyers said, and remote hearings for 137 people would be unprecedented and subject to tampering.
The dispute over due process focuses on the 137 of 252 Venezuelan deportees who were removed from the United States solely under the Alien Enemies Act, Boasberg ruled.
“Given the passage of time, the U.S. government does not know — nor does it have any way of knowing — the whereabouts of class members, including whether anyone has departed Venezuela or whether the regime subsequently took anyone back into custody,” Rubio said.
Attorneys at the ACLU and Democracy Forward Foundation said that even after their release from El Salvador’s Terrorism Confinement Center, known as CECOT, the deported migrants “now face the risk of persecution and serious harm in Venezuela” because of the administration’s unlawful maneuvers.
Justice Department lawyers said they all but expected Boasberg to rule against the administration and “cause serious harms to the foreign policy and national security of the United States.” They requested that the judge stay any such ruling pending the resolution of an appeal.
Boasberg is conducting an inquiry into whether Trump administration officials should face contempt-of-court charges for defying an earlier order the judge had issued, barring the government from flying the migrants to El Salvador last March. The contempt inquiry was paused last month by two Trump appointees on the D.C. Circuit federal appeals court, days before a fired Justice Department whistleblower, Erez Reuveni, was set to testify about how top officials chose to disregard Boasberg’s orders.
Homeland Security Secretary Kristi L. Noem has said in a court filing that she made the decision to keep flying the migrants after Boasberg’s rulings, following advice from Justice Department attorneys.
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