In a court filing a day after a federal judge demanded more information on over 250 people who were expelled from the United States to a Salvadoran prison under an extreme wartime power, the Trump administration continued to stonewall, insisting the judge had no right to request it.
The administration’s filing on Tuesday adds to an ongoing constitutional crisis in which the Trump administration is claiming extremely broad authority to arrest and remove people from the country without due process, based solely on unproven assertions of gang membership and claims that the gang in question is actually an invading army.
Over the weekend, hundreds of Venezuelan migrants were flown from the United States to El Salvador despite U.S. District Judge James Boasberg issuing an oral order demanding that any planes in the air immediately return to the United States.
The filing on Tuesday claimed that the judge’s verbal orders were “not independently enforceable as injunctions.” The administration also said it was not required to turn around the planes because “the relevant flights [had] left U.S. airspace.”
Boasberg, however, specifically addressed that argument in court Monday, saying his authority did not end “at the airspace’s edge.”
The new filing, signed by Attorney General Pam Bondi, also asserts that given an ongoing appeal, the government “should not be required to disclose sensitive information bearing on national security and foreign relations until that motion is resolved, especially given that this information is neither material nor time sensitive.”
A short time after the administration’s filing, Boasberg entered a new order demanding the administration answer detailed questions about two of three flights that carried expelled migrants out of the United States.
On Friday, Trump secretly signed a proclamation invoking the Alien Enemies Act, which allows presidents to arrest and deport noncitizens without due process during a declared war against, or an invasion of, the United States by a foreign nation. The proclamation was announced on Saturday.
The law has only been used three times previously, including against Japanese immigrants during World War II. Trump claims the Venezuelan gang Tren de Aragua qualifies as a foreign government that is at war with the United States.
Trump quickly faced a lawsuit Saturday from Democracy Forward and the American Civil Liberties Union. During a hearing that evening, Boasberg, chief judge in the federal district court in Washington, D.C., verbally ordered the administration to turn around any planes carrying people who had been expelled under the invocation.
“This is something that you need to make sure is complied with immediately,” he told Justice Department lawyers representing the Trump administration.
The administration did not abide by the order. Instead, it allowed three planes full of Venezuelan immigrants to the United States to land in El Salvador.
On Sunday morning, Salvadoran President Nayib Bukele, a key Trump ally, published a video showing those people being manhandled, having their heads shaved, and being sent to a notorious prison in the Central American nation. Bukele is imprisoning the migrants in the Centro de Confinamiento del Terrorismo, or CECOT, in exchange for $6 million from American taxpayers. The prison is widely known for its harsh conditions, extremely restrictive environment, and numerous prisoners’ deaths in captivity — and Bukele has said the migrants will perform forced labor.
Bukele also posted on social media mocking the federal judge. Secretary of State Marco Rubio, Trump aide Elon Musk, and a White House spokesperson all amplified the post, with several people, including Trump and Musk, also calling for Boasberg to be impeached.
Rep. Brandon Gill (R-Texas) on Tuesday introduced articles of impeachment against the judge, saying he was “guilty of high crimes and misdemeanors and should be removed from office.”
Boasberg said in court Monday that it was a “heck of a stretch” to say the administration did not have to follow his oral orders. He had earlier demanded answers from the administration, which did not provide them in court, instead saying it was “not at liberty” to discuss “operational issues,” even though federal courts routinely deal with classified information.
The judge demanded more information in writing by noon Tuesday. The Trump administration claimed that “there is no justification to order the provision of additional information.”
However, the court filing on Tuesday did answer some of the judge’s questions. In an attached declaration, Robert L. Cerna, the acting field office director of Immigration and Customs Enforcement’s Enforcement and Removal Operations division, said ICE understood that Trump’s Alien Enemies Act invocation took effect once it was posted on the White House website Saturday, though Trump had signed it the day prior.
Cerna also listed basic information about the three flights in question. Specifically, he singled out the final flight to El Salvador, which was still on U.S. soil when the judge issued his written order following Saturday’s hearing pausing Alien Enemies Act removals.
“The third plane departed after that time, but all individuals on that third plane had Title 8 final removal orders and thus were not removed solely on the basis of the Proclamation at issue,” Cerna said, echoing a claim the administration made in court. (Only 137 people were sent to El Salvador under the Alien Enemies Act proclamation, while the rest were removed under other federal laws, the administration has said.)
Cerna also gave general details about supposed gang members still in removal proceedings in the United States. “At this time approximately 54 members of [the Tren de Aragua gang] are in detention and on the detained docket, approximately 172 are on the non-detained docket, and approximately 32 are in criminal custody with active detainers against them,” he wrote. “Should they be transferred to ICE custody, they will likely be placed in removal proceedings.”
After the hearing Monday, the administration yet again called on the court to vacate its orders pausing the Alien Enemies Act removals. (It has separately asked an appeals court to step in and replace Boasberg as the judge overseeing the case.)
Trump’s decision “is a nonjusticiable political question,” the administration’s Monday night court filing — also signed by Bondi — claimed, adding: “Article II confers on the President expansive authority over foreign affairs, national security, and immigration.” The court’s orders, the administration said, undermined “delicate international negotiations to remove dangerous alien enemies, where even a short delay in removal can frustrate removal entirely.”
Multiple people — including immigration attorneys and family members — have come forward to say migrants who were expelled to El Salvador have no ties to gang activity, according to numerous reports. Some appear to have been singled out based on their tattoos, they say.
“In the absence of hearings, evidence, or any other feature of due process, it is 100% inevitable that innocent people will be swept into these mass deportations and will find themselves trapped in some of the most hellish circumstances imaginable,” observed Liza Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice.
In a previous declaration filed with the court Monday, Cerna admitted that many of the supposed gang members do not have any U.S. criminal record. But he claimed that the administration’s “lack of specific information” about the immigrants “actually highlights the risk they pose.”
“While it is true that many of the [Tren de Aragua] members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time,” Cerna wrote. “The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.”
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Cerna listed a handful of criminal violations he said had been alleged against the removed migrants, including “an individual alleged to have committed murder.”
Cerna claimed “Agency personnel carefully vetted each individual alien to ensure they were in fact members of TdA,” but the administration has not released a list of people removed under the Alien Enemies Act.