The Justice Department has acknowledged that it was Homeland Security Secretary Kristi Noem who decided last March to proceed with the deportation of more than 200 Venezuelans to El Salvador despite a federal judge’s order requiring the flights to return to the United States. The Government admitted as much in a court document filed Tuesday in response to Judge James Boasberg’s request that the Administration identify officials who failed to comply with his order and authorize the operation that would lead to migrants being incarcerated for months in a notorious prison in the Central American country. The case represented a high point in Donald Trump’s crusade against immigration.
On March 15, the Trump administration authorized the deportation of more than 200 Venezuelan migrants and some Salvadorans accused of belonging to Latin American criminal gangs, such as the Aragua Train. The president invoked a 1798 law, the Foreign Enemies Act, used only three times in history and always in war contexts, to expel them without any due process. In El Salvador, migrants remained for months in Cecot, a maximum-security mega-prison known for its poor conditions and violations of inmates’ rights. After suffering torture and other abuse in prison, they were handed over to Venezuela in a political prisoner swap agreed with the United States in July.
In the brief filed Tuesday, the Government admits that the Department of Justice informed Secretary Noem of Judge Boasberg’s orders seeking to block the deportations. The first was issued verbally when the first two flights had already left for El Salvador; The magistrate demanded that any plane already in the air return to the United States immediately. Boasberg then issued a written order prohibiting expulsions under the Alien Enemies Act. A few minutes later the third flight took off.
Officials from the Department of Justice and the Department of Homeland Security forwarded their legal advice on the court order to Noem, who ultimately decided that the deportees “could be transferred to the custody of El Salvador.” The Government insists that “this decision was legal and consistent with a reasonable interpretation of the court order”. They argue that Boasberg’s verbal order to block the deportation flights was “not binding.” And that his subsequent written order did not require the return of detainees already expelled.
The revelation comes after Boasberg announced last week that he will press ahead with his criminal investigation into the contempt to find out which officials were responsible for disobeying his orders. In April, the judge found grounds to declare the Republican government in contempt of the deportations to El Salvador, finding that the Administration’s actions that day demonstrated a “deliberate disregard” for its decisions.
However, before he could proceed with the proceedings, an appeals court suspended him. Seven months later, the court lifted the suspension on November 14, and last Wednesday Boasberg announced he would resume the investigation. “This has been pending for a long time and I believe that justice requires that I act quickly in this matter,” Boasberg said, adding that he has every “intention to find out what happened” on March 15.
The judge ordered both sides to submit proposals on how to proceed, along with a list of witnesses to start the trial. In response to this request, the Government admitted that it was Noem who gave the green light to the deportations that day. “The government maintains that its actions did not violate the court’s order – certainly not with the clarity necessary to qualify as criminal contempt – and that no further proceedings are warranted or appropriate,” the Justice Department wrote.
Boasberg said he will require people involved in deportation decisions in El Salvador to submit affidavits. And if you feel that the statements are not enough or if you have other questions, you will subpoena them to testify under oath in court. Some of those cited may be Trump administration officials.
The American Civil Liberties Union (ACLU), which filed the lawsuit that led to this court battle, has requested that more than half a dozen potential witnesses from the Department of Homeland Security and the Department of Justice appear in open court to testify.
