Judge orders administration to submit plans for return of migrants deported to El Salvador prison under AEA

U.S. District Judge James Boasberg on Monday ordered the Trump administration to submit plans to return or otherwise provide hearings for over 200 migrants who were deported to El Salvador’s CECOT mega-prison in March.

Boasberg has certified a class representing all migrants sent to the prison and says the government must submit its plans to allow them to contest their designation under the Alien Enemies Act by Jan. 5.

The Trump administration in March invoked the AEA — an 18th century wartime authority used to remove noncitizens with little-to-no due process — to deport two planeloads of alleged migrant gang members to the El Salvador prison by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States.

Boasberg issued a temporary restraining order and ordered that the planes be turned around, but Justice Department attorneys said his oral instructions directing the flight to be returned were defective, and the deportations proceeded as planned.

Boasberg subsequently sought contempt proceedings against the government for deliberately defying his order, but earlier this month a federal appeals court granted the Justice Department an emergency stay of those proceedings.

The more than 200 migrants who were deported to CECOT were sent to Venezuela in July in a prisoner swap.

Boasberg, in his order Monday, said the U.S. government “maintained constructive custody” over the migrants while they were imprisoned at CECOT, and that their right to due process was violated when the Trump administration invoked the Alien Enemies Act to deem them members of Tren de Aragua without allowing them to contest the designation.  

“By granting the Motion, this Court is declaring that Plaintiffs should not have been removed in the manner that they were, with virtually no notice and no opportunity to contest the bases of their removal, in clear contravention of their due-process rights,” the judge wrote. 

Boasberg sided with attorneys who said El Salvador imprisoned the men at the behest of the United States and partly in exchange for $4.7 million.

The ruling paves the way for all the migrants sent to CECOT to contest their designation as alien enemies and Tren de Aragua members. Judge Boasberg ordered the government to submit plans to give the men “meaningful opportunity to contest their designation,” by either facilitating their return to the United States or otherwise allowing them to have hearings.

“The Government could also theoretically offer Plaintiffs a hearing without returning them to the United States so long as such hearing satisfied the requirements of due process,” he wrote. 

ACLU attorney Lee Gelernt, who is spearheading the lawsuit against the AEA deportations, said the men will finally get due process.  

“The men endured immeasurable abuse but will now finally get the due process the Trump administration indisputably denied them,” Gelernt said.