A federal judge expressed frustration on Monday night with the government’s failure to give due process to a group of deportees the administration is trying to send to South Sudan but is now holding in Djibouti, as he had mandated last week.
“It turns out that having immigration proceedings on another continent is harder and more logistically cumbersome than defendants anticipated,” the judge, Brian E. Murphy of Federal District Court in Massachusetts, wrote in his 17-page order. He added that if giving deportees remote proceedings proved too difficult, the government could still return the men to the United States.
Judge Murphy’s earlier order, issued on Wednesday, mandated that six of the eight men be given a “reasonable fear interview,” or a chance to express fear of persecution or torture if they were sent on to South Sudan. At a hearing that day, he found that the government had violated another order that the deportees be given notice in a language they could understand, and at least 15 days to challenge their removal. Instead, the judge found they were given “fewer than 16 hours’ notice.”
On Monday night, Trina Realmuto, a lawyer for the migrants in the case, confirmed that her team had not been given phone access to them. The Homeland Security Department’s public affairs office did not immediately respond to a request for comment.
The substance of Judge Murphy’s order was not surprising, as he rejected a motion from the government that he pause one of his earlier orders. But his criticism of the government’s delay in offering due process appeared to reflect his growing frustration in another contentious case in the back-and-forth between the Trump administration and federal courts.
The day after Judge Murphy ordered that the migrants remain in U.S. custody, the White House called them “monsters” and the judge “a far-left activist.” Then, on Friday night, Judge Murphy ordered the government to “facilitate” the return from Guatemala of a man known as O.C.G., one of the original plaintiffs in the case.
“The Judges are absolutely out of control,” President Trump wrote on Thursday in a social media post criticizing Judge Murphy. “This must change, IMMEDIATELY!”
The case before Judge Murphy is a class-action lawsuit that considers the due process rights of not only the men in Djibouti but also any migrants eligible for deportation whom the Homeland Security Department is trying to send to a so-called third country other than their country of origin.
The administration has already struck deals with Costa Rica, Panama, Guatemala, Mexico and El Salvador as part of its efforts to remove people who would be difficult to deport to their home countries. More recently, the administration has tried to send migrants to war-torn countries like South Sudan and Libya. Both of those countries have “do not travel” ratings from the State Department because of the possibility of armed conflict and other threats.
There were eight deportees aboard the flight to Djibouti. One is South Sudanese, and the government has said that another will be sent to his home country, Myanmar, leaving the six others in limbo. All eight have been convicted of violent crimes.
“The court recognizes that the class members at issue here have criminal histories,” Judge Murphy wrote. “But that does not change due process.”
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