Nearly 150 Deportees Remain Wrongfully Detained After Months Of Trump Stonewalling

INSIDE: James Boasberg ... Cristian ... Alistair Kitchen

(Photo by MANDEL NGAN/AFP via Getty Images)

The Absence Of News Is News

A key storyline through the first five months of the Trump administration is how the judicial branch has held up to the challenge of an autocratic president. While on balance the judiciary has fared better than it might have, one group of cases has been particularly vexing: the unlawful removals of foreign nationals in defiance of court orders.

The courts have either been slow, too solicitous of the executive branch, or wrong-headed in their approaches. That has yielded lethargic outcomes that don’t provide justice to the wrongfully deported or sufficient accountability for the bad-faith defiance by the administration.

A quick accounting of some of the most notable cases where detainees have fallen into and remain in an interminable legal limbo:

Alien Enemies Act

Who? The CECOT detainees remain the single biggest cluster of wrongfully removed foreign nationals, a group of 137 Venezuelan nationals sent to El Salvador under the Alien Enemies Act without the due process that U.S. courts – including the Supreme Court – have since nearly universally found to have been required.

When? The CECOT detainees were removed on two flights from Texas on March 15 despite a court order that they not be removed and that the planes should be turned around.

What next? The original Alien Enemies Act case in front of Judge James Boasberg in D.C. is now a class action lawsuit consisting of all the CECOT detainees removed under the AEA. While Boasberg has generally been amenable to their claims, his most recent ruling was more focused on providing them with the due process they were denied than on immediately returning them to the United States, contemplating some sort of remote or virtual hearing process that has yet to be determined.

Why the delay? Boasberg’s early June order has been stymied by a Trump-heavy appeals court panel, which issued an administrative stay and is considering whether to grant the Trump administration’s request that the case be paused during its appeal. A ruling here may come as soon as today.

Contempt of court: In the background of all this remains the violation of Boasberg’s original March order barring the removals in the first place. Boasberg found probable cause that the Trump administration is in criminal contempt of court, but the D.C. Circuit Court of Appeals issued an administrative stay in April blocking him from continuing with contempt proceedings and still hasn’t ruled even though two months have now elapsed.

Cristian

Who? Cristian is a Venezuelan national removed to CECOT under the Alien Enemies Act in violation of a 2024 court-ordered settlement agreement.

When? Cristian was removed on March 15. On April 23, U.S. District Judge Stephanie Gallagher of Maryland ordered the Trump administration to facilitate his return.

What next? Under orders from Gallagher, the Trump administration is required to facilitate Cristian’s return and file weekly status reports on its progress. It has thus far filed desultory status reports, with the Department of Homeland Security pointing the finger at the State Department but providing no real update on diplomatic efforts, if any. The next status report is due today.

Why the delay? The Trump administration is continuing to stonewall in this case like it did for months in the Abrego Garcia case, which was only resolved when the administration took the face-saving step of indicting him on criminal charges that it used to justify asking the Salvadoran government to return him.

Contempt of court: Judge Gallagher has confronted the stonewalling by ordering expedited discovery similar to that previously ordered in the Abrego Garcia case. The expedited discovery has been underway since early June, and so far it’s unclear whether the administration has stonewalled that process, too, like it did in the Abrego Garcia case.

South Sudan Detainees

Who? A group of six detainees of various nationalities has been stuck at a U.S. military base in Djibouti where their flight to South Sudan was diverted after U.S. District Judge Brian Murphy of Boston intervened to enforce his already-issued injunction against such third-country removals without notice.

When? The detainees have been in Djibouti since about May 21.

What next? Under orders from Murphy, the Trump administration must give the detainees a chance to raise objections to their deportations to South Sudan or to other third countries. That was supposed to be a 14-day process beginning around May 23. It’s now been almost a month and the status of that process remains somewhat opaque.

Why the delay? It’s not clear exactly. By giving the administration a chance to provide due process to the detainees while still in Djibouti, he set up the potential for further delays and opacity. The Trump administration has described the conditions at the U.S. base as harsh, but it was the administration’s choice to keep the detainees there instead of returning them to the United States.

Contempt of court: Murphy is poised to launch a contempt of court proceeding over the violation of his order blocking such removals without notice after the immediate fate of the South Sudan detainees is determined. Murphy is already probing a separation alleged violation of his order that occurred when the Department of Homeland Security used the Defense Department to fly detainees from Gitmo to El Salvador as ham-handed way to get around his order.

Melgar-Salmeron

Who? Jordin Melgar-Salmeron is a Salvadoran national deported to his home country in violation of an order from the Second Circuit Court of Appeals.

When? Melgar-Salmeron was deported on May 7, minuted after the appeals court issued its order barring his removal.

What next? After revising its explanation, the Trump administration is now calling the violation of the court order an inadvertent mistake due to a “confluence of administrative errors,” but it has moved slowly to remedy the situation.

Why the delay? The Trump administration is taking the position that it must only allow Melgar-Salmeron, not actively seek his return.

Contempt of court: The appeals court has been asking tough questions of the administration, but it has not yet launched a contempt proceeding per se, as Melgar-Salmeron have asked for.

We may see movement in some of these cases as soon as today, but when you step back and survey the blatant violations of court order by the administration and the long delays in remedying those violations, it’s clear that the process and procedures in place – plus problematic interventions by appeals courts – have been insufficient to produce just outcomes. Even the cases of two detainees – Kilmar Abrego Garcia and O.C.G. – who were returned eventually don’t offer any satisfaction. So even if the courts have “stood up” to the administration, the rule of law has not been validated in a timely or robust way.

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