Judge Boasberg rules migrants at Salvadoran megaprison can contest gang accusations

The Hill

2 days ago

A federal judge on Wednesday ruled a group of Venezuelans deported to a Salvadoran megaprison under the Alien Enemies Act must be provided a legal avenue to contest the Trump administration's accusations that they are gang members.
U.S. District Judge James Boasberg did not outline specific steps the administration must take, providing one week to propose how it intends to comply.
Boasberg said he realized the ruling 'may implicate sensitive diplomatic or national-security concerns' but said the administration 'also has a constitutional duty to provide a remedy that will 'make good the wrong done.''
It's a complex scenario for the administration to carry out.
The Trump administration has argued they have no ability to secure the return of anyone held at CECOT, a notorious Salvadoran prison known by its acronym in Spanish.
And Salvadoran President Nayib Bukele has said he will not return a mistakenly deported man sent to the facility under regular immigration authorities. That raises the prospect he would decline to do so for Venezuelans being incarcerated in a country that has also been criticized for due process violations in locking up gang members.
But the situation spurred an unusual ruling from Boasberg, who turned to literature in determining the men must be given the opportunity for due process.
Boasberg described the process of carrying out Trump's removals under the Alien Enemies Act as being akin to a scene from the Franza Kafka novel 'The Trial,' as the Venezuelan men deported through the law were given few answers about what was about to happen to them.
'In the early morning hours, Venezuelans held by the Department of Homeland Security at El Valle Detention Facility in Texas were awakened from their cells, taken to a separate room, shackled, and informed that they were being transferred,' Boasberg wrote.
'To where? That they were not told. When asked, some guards reportedly laughed and said that they did not know; others told the detainees, incorrectly, that they were being transferred to another immigration facility or to Mexico or Venezuela.'
Boasberg noted that migrants 'reportedly began to panic and beg officials for more information' only to arrive and learn they were being sent to a Salvadoran megaprison.
The migrants were flown out of the country on March 15, shortly after President Trump signed a proclamation invoking the Alien Enemies Act. The law has only been used three previous times, all during declared wars, but Trump has looked to the statute to justify rapidly deporting alleged gang members.
Boasberg noted evidence suggesting many of the deported Venezuelans have no gang connection 'and thus languish in a foreign prison on flimsy, even frivolous, accusations.'
'Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, Defendants are correct that Plaintiffs are gang members,' Boasberg wrote. '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.'
One of the lead plaintiffs in the case, Andry Hernandez Romero, came to the U.S. to seek asylum. Romero is a gay makeup artist who said he was facing persecution by the Maduro regime both for his sexuality and political activism.
The Trump administration has pointed to tattoos on each of his wrists displaying crowns with the words mom and dad written in Spanish to argue he is a gang member, saying the crowns are signifiers of the Tren de Aragua gang. Experts, however, have said the gang doesn't rely on tattoos to indicate membership, and friends of Hernandez Romero say the tattoos were a nod to Three Kings Day celebrations in his hometown in Venezuela.
Trump's use of the Alien Enemies Act has sparked a legal battle spanning more than a dozen lawsuits across the country, but Boasberg has been involved since the beginning.
In mid-March, the American Civil Liberties Union (ACLU) rushed to Boasberg's court when Trump first invoked the law, quickly securing an order to halt or turn around any flights. Boasberg on Tuesday again condemned the administration for allowing the flights to land in El Salvador that weekend, writing his 'mandate was ignored.'
Trump and his allies have publicly accosted Boasberg for his ruling, including calling for his impeachment.
The Supreme Court twice ruled the administration must give migrants sufficient notice before deporting them, but it has left it to the lower courts to take a first pass at determining exactly how much notice is required.
'In light of those Supreme Court holdings, this Court ultimately agrees with the CECOT Plaintiffs that they are likely to succeed on the merits of their due-process claim. Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States,' Boasberg wrote.