On Monday, the Department of Justice (DOJ) asked a federal appeals court in Washington, D.C., to replace the judge overseeing a case involving the deportation of hundreds of alleged Venezuelan gang members to El Salvador. These deportations were carried out under the Alien Enemies Act, a law that allows the U.S. to deport foreign nationals during wartime.
The DOJ’s request came after Chief Judge James Boasberg questioned a DOJ lawyer about the deportations that had taken place over the weekend. The DOJ also asked Boasberg earlier that day to cancel a scheduled hearing, but Boasberg refused.
In a ruling on Saturday, Boasberg had ordered the DOJ to bring back any deportees who were still in the air on flights that left the U.S. The DOJ disagreed, saying that Boasberg’s verbal order wasn’t enforceable, though they later followed a written order blocking further deportations.
During the hearing, Deputy Associate Attorney General Abhishek Kambli told Boasberg that he couldn’t discuss details of the deportation flights publicly. At the same time, Lee Gelernt, a lawyer representing five Venezuelan men, warned that the situation was approaching a “constitutional crisis.”
“I think we’re getting very close to that,” Gelernt said. He argued that two deportation flights left the U.S. after Boasberg’s order was issued. This, he said, was because Kambli refused to answer questions about the flights, and the Trump administration argued that deportations under the Alien Enemies Act were not subject to court orders once the planes left U.S. airspace.
Boasberg disagreed, stating, “It doesn’t matter if you’re in U.S. airspace or not.” Kambli responded that national security concerns made it difficult to stop the planes in mid-flight, but Boasberg interrupted him, asking why the planes weren’t turned around. The judge suggested that the DOJ was acting as if they could do whatever they wanted.
Boasberg also asked whether President Trump had special powers when a plane crosses into international airspace. He said, “I think my equitable powers are pretty clear” and don’t end at the edge of U.S. territory. He also called the DOJ’s claim that the planes couldn’t be turned around “a heck of a stretch.”
Later, Boasberg said he would issue a written order demanding the DOJ answer several questions about the deportations, and he would expect their responses by noon on Tuesday. He noted that his oral orders seemed to be ignored, so he wanted the DOJ to provide more detailed information about the flights and deportations.
The DOJ, in a letter to the appeals court, said that Boasberg should no longer handle the case. They argued that Boasberg was holding a public hearing on sensitive details about deportations involving foreign terrorist groups. The DOJ warned that the court’s actions could force the government to reveal sensitive national security information or face penalties.
Deputy Assistant Attorney General Drew Ensign criticized the procedures in the district court, calling them highly unusual and improper, such as certifying a class action lawsuit in under 18 hours without the government having time to prepare.
The appeals court has not yet decided whether to replace Boasberg.
