By Luc Cohen
(Reuters) – A U.S. judge on Wednesday is due to consider whether to order Republican President Donald Trump’s administration to facilitate the return to the U.S. of Venezuelan migrants detained in El Salvador, potentially opening a new front in a major challenge to Trump’s aggressive deportation policy.
Washington D.C.-based U.S. District Judge James Boasberg will hear arguments from the American Civil Liberties Union, which is representing the Venezuelans, and the Justice Department at a hearing at 5 p.m. EDT (2100 GMT).
While the administration has been blocked from deporting more Venezuelans under an 18th-century wartime law, Wednesday’s hearing is the first time a judge will consider a bid to return a group of migrants already detained in El Salvador.
Any order from Boasberg for Trump to facilitate the migrants’ return could spark a fresh confrontation between the executive and judicial branches of government, which are co-equal under the U.S. Constitution. Democrats and some legal observers say the administration has dragged its feet in complying with court rulings, prompting concerns about a constitutional crisis.
Trump in March called for Boasberg to be impeached after he ordered the government to turn around deportation flights carrying the migrants so he could evaluate whether their deportations under the 1798 Alien Enemies Act were lawful. That prompted a rare rebuke from U.S. Chief Justice John Roberts, who said appeals, not impeachments, were the proper response to unfavorable court decisions.
Despite the judge’s order, at least 137 Venezuelans who the administration alleges belong to the Tren de Aragua gang were handed over to authorities in El Salvador, where they are being held in a mega-prison known as the Terrorism Confinement Center, or CECOT. Washington is paying the Central American country’s government $6 million to house them.
Relatives of many of the men and their lawyers deny gang membership, and say they were not given the chance to contest the administration’s assertions.
In invoking the Alien Enemies Act to speed up the deportations of alleged Tren de Aragua members, Trump said the gang was “conducting irregular warfare” against the U.S. at the direction of socialist Venezuelan President Nicolas Maduro.
But a U.S. intelligence memo made public this week appeared to undercut that assertion. The U.S. intelligence community has concluded that Maduro’s government “is not directing TDA movement to and operations in the United States,” according to an April 7 memorandum from the Office of the Director of National Intelligence obtained by the Freedom of the Press Foundation under a public records request.
PARALLELS TO ABREGO GARCIA CASE
Since Boasberg’s ruling, federal judges in Manhattan, Denver, and Brownsville, Texas have issued injunctions blocking further deportations under the Alien Enemies Act, which is best known for being used to intern and deport people of Japanese, German and Italian descent during World War Two.
The judges said Tren de Aragua’s presence in the United States did not constitute an “invasion” as required by the act.
In court papers urging Boasberg to order the migrants’ return, the ACLU said the U.S. government was still ultimately responsible for the migrants’ incarceration even though they are being held in another country.
In response, lawyers with the Justice Department wrote that the U.S. could not “obtain or retain control” over the migrants in El Salvador, a sovereign country.
Any order from Boasberg to facilitate the migrants’ return would echo another federal judge’s order that the administration facilitate the return of Kilmar Abrego Garcia, a Salvadoran migrant wrongly deported to El Salvador.
So far, the Trump administration has not given any indication it has asked El Salvador’s government to return Abrego Garcia to the United States.
(Reporting by Luc Cohen in New York; Editing by Aurora Ellis)
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