Judge Requires Trump Admin to Provide Due Process for Deportees in El Salvador Prison

The administration had argued the judge lacked authority to rule on the case.

U.S. District Judge James Boasberg, chief judge of the United States District Court for the District of Columbia, stands for a portrait at E. Barrett Prettyman Federal Courthouse in Washington on March 16, 2023. Carolyn Van Houten/The Washington Post via AP

U.S. District Judge James Boasberg has ordered the Trump administration to provide a form of due process known as habeas relief for individuals it deported and who are currently being held in a Salvadoran maximum security prison.

In an order issued on June 4, Boasberg said these individuals were removed in March without any meaningful opportunity to seek writs of habeas corpus, which is a method for individuals to challenge their detention. He said that while his order may involve “delicate questions relating to diplomacy and national security,” the government would need to propose ways of providing due process to the prisoners.

The order was the latest in a series of court cases surrounding Trump’s attempt to use a wartime law, known as the Alien Enemies Act, to deport members of the Venezuelan Tren de Aragua gang. The issue has already reached the Supreme Court in multiple cases, including the one in which Boasberg issued his June 4 order.

Although the Supreme Court reversed two of Boasberg’s prior orders, it said that the deportees must receive an opportunity for habeas relief. Attorneys have also challenged whether Trump’s invocation of the Alien Enemies Act, which is applicable during an invasion or incursion, was valid. Boasberg didn’t rule on that issue.

He ruled that even if Trump properly invoked the act and the deportees were gang members, the administration still needed to provide due process.

“Perhaps, moreover, Defendants are correct that Plaintiffs are gang members,” the judge said. “But—and this is the critical point—there is simply no way to know for sure, as the ... Plaintiffs never had any opportunity to challenge the Government’s say-so.”

His opinion started with a scene from Franz Kafka’s novel “The Trial,” suggesting that those deported encountered Kafkaesque conditions from the government.

The administration has accused Boasberg of overstepping his authority by wading into foreign affairs, a realm traditionally left to the executive branch.

The administration has expressed concern about working with the deportees now that they’re in a foreign nation. It’s unclear how the prisoners at the Centro de Confinamiento del Terrorismo or CECOT facility in El Salvador will receive habeas relief.

Boasberg said in his June 4 opinion that a government declaration to the court showed that the CECOT detainees’ detention was not solely at the behest of the U.S. government. He also gave the administration a week to inform the court on how it intended to facilitate CECOT detainees’ ability to obtain habeas relief.

In a filing in May, the administration told the judge that he lacked jurisdiction to rule on the plaintiffs before him. The Supreme Court had ruled that a group of initial plaintiffs couldn’t bring habeas petitions in the District Court for the District of Columbia, where Boasberg serves as chief judge, because they weren’t detained in that location.

A similar principle applied to more recent plaintiffs to join the lawsuit, the Justice Department said in its brief to the court.

“All of them are either in custody in El Salvador, in other districts, or not in custody at all,” it said. “So this Court still lacks jurisdiction to certify the classes or adjudicate their claims.”

The plaintiffs, some of whom are Venezuelan nationals, had requested certification of two classes, but Boasberg certified only one—the group of individuals detained at CECOT. Boasberg said that the plaintiffs had brought a “freestanding” due-process claim outside of habeas and that it could be brought in his district because the defendants are government officials in Washington.