DC Circuit split on returning migrants from foreign prisons

A federal judge in Washington ordered the government to facilitate the return of hundreds of migrants who were deported to a Salvadoran mega-prison and since released to Venezuela.WASHINGTON (CN) — A D.C. Circuit panel on Friday appeared likely to side with the Trump administration in a long-running dispute over whether a federal judge exceeded his authority by ordering the government to return more than 200 Venezuelan men deported to El Salvador in March 2025.The three-judge panel heard arguments in an appeal by the government challenging Chief U.S. District Judge James Boasberg’s order demanding the government facilitate the return of the deported migrants back to the United States to continue their asylum proceedings.In February, Boasberg ordered the federal government to bring back the migrants who were wrongfully deported to the CECOT mega-prison in El Salvador after being designated as Tren de Aragua gang members under the Alien Enemies Act.Per the Barack Obama appointee’s order, the migrants could challenge their designations via supplemental habeas corpus petitions, participate in virtual hearings and potentially resume their asylum proceedings if they choose to return to the U.S., where they would return to immigration custody.Lee Gelernt, of the American Civil Liberties Union and representing the migrant class, urged the court to uphold Boasberg’s order, as siding with the government would grant it an extraordinary loophole in its mass deportation campaign.“What they are saying is they can essentially whisk people away to a foreign prison, give them no opportunity to contest the removal, even whether they’re part of this gang that proclamation applies to, concede that they violated due process under J.G.G. [v. Trump] and *A.A.R.P. [v. Trump],*and then say because we got them out of the country into a foreign prison that’s the end of the matter,” Gelernt said.Senior U.S. Circuit Judge A. Raymond Randolph noted that the usual relief under a habeas corpus petition is to be released from prison, which the migrants all have been.“They can bring a violation of due process claim and get damages, but we’re talking about habeas corpus,” the George H.W. Bush appointee said. “In habeas corpus, the remedy is release from confinement and they’ve already been released.”Justice Department attorney Tiberius Davis argued the federal government held no “constructive custody” over the migrants while they were in El Salvador, and especially do not have any control over their fates now that they’ve been released in a prisoner exchange with Venezuela.“The district court’s free-willing and willful reading of the record would open the floodgates to claims that the United States has constructed custody over prisons across the globe,” Davis said. “Could we be open to challenges that the United States violated the Eighth Amendment in a prison in Iraq, or conditions of confinement in Eswatini? And will courts have to delve into sensitive diplomatic negotiations and discovery in order to figure that out?”Davis urged the panel to reject the migrants’ argument that the U.S. government held “unilateral control” over their detention since it paid Salvadoran President Nayib Bukele approximately $4.7 million to hold the detainees. He claimed substantial negotiation between U.S. Secretary of State Marco Rubio and Bukele was required to return Maryland man Kilmar Ábrego García, who was wrongfully designated an MS-13 member and deported.Senior U.S. Circuit Judge Harry T. Edwards seemed skeptical of that argument, pointing out the Supreme Court has consistently found migrants — even those who enter without permission — are entitled to due process under the Constitution, including in the high court’s order to facilitate Ábrego García’s return. Only migrants who have yet to cross the border are not afforded rights under the Constitution, the Jimmy Carter appointee observed.“This is a case in which the Supreme Court has said that they had already passed through the gate, so to speak, and they were removed illegally, and that’s the claim their seeking to raise,” Edwards said. “It doesn’t matter that they may have been moved from El Salvador to Venezuela. The record seems to suggest that neither side had exclusive control, but they seem to have something like joint control.”Randolph disagreed with Edwards on the Supreme Court’s ruling in Ábrego García’s case, saying the justices had merely ordered the government facilitate his release — not his return — and noting the Salvadoran government only returned the Maryland man after he was indicted on human trafficking charges.“The only thing that was facilitated was his release from custody in El Salvador, and that’s a moot question because all these people have already been released,” Randolph said. “There’s nothing to facilitate.”Another federal judge threw out that indictment, finding it a clear example of vindictive prosecution meant to punish Ábrego García for challenging his summary deportation.U.S. Circuit Judge Neomi Rao, a Donald Trump appointee, noted that Edwards raised an interesting point by highlighting the different rights afforded to migrants at the border and after they’ve crossed into the country.“The Supreme Court has said some due process rights attach,” Rao said. “Do those rights go with them when they’ve been removed? I think, in some ways, that’s a novel question.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads