U.S. District Judge James Boasberg has ordered the Trump administration to facilitate hearings for more than 100 individuals in Venezuela, holding that they were deported without due process earlier this year.
In an opinion on Dec. 22, Boasberg gave the administration two weeks to provide a proposal for facilitating the return of those individuals but said the government could “theoretically” provide hearings without returning them.
His decision impacts a class of 137 Venezuelans who were deported to El Salvador in March under President Donald Trump’s declaration targeting members of the Tren de Aragua gang as members of a foreign terrorist organization. They were later released into their country of origin, Venezuela, in July.
The Justice Department is expected to challenge the ruling as it has with many others issued by Boasberg—including his recent attempt to investigate potential contempt by the administration.
The months-long legal saga started with the judge issuing two temporary restraining orders blocking officials from removing individuals under the Alien Enemies Act. Those orders were later vacated by the Supreme Court, which said the underlying lawsuit wasn’t brought with the right legal mechanism. It also said Trump should provide some kind of due process for potential deportees.
While detained in El Salvador, a new set of plaintiffs filed a lawsuit under habeas corpus, which is the legal mechanism the Supreme Court said was required. Boasberg responded by certifying a class that included all noncitizens removed to El Salvador as part of Trump’s declaration.
Since then, the Trump administration has escalated tensions with Venezuela over drug trafficking operations in the country—launching attacks on drug boats, imposing an oil blockade, sanctioning family members of the Maduro regime, and even leaving open the possibility of military conflict.
Among other arguments, the Justice Department told Boasberg he lacked authority to rule on the issue because the removed individuals were no longer in U.S. custody.
“Once Petitioners were released to El Salvador, the United States lost and never regained custody over them,” the department said in October. It also disputed the idea it had “constructive custody” or legal control over the deported individuals.
“Ultimately, there is no serious argument that [federal officials] have constructive custody over 137 free individuals in a foreign country controlled by a regime hostile to the United States,” it said.
Boasberg said in June there wasn’t enough evidence to show the administration had that type of custody but changed his determination on Dec. 22, citing new facts that he said developed.
“El Salvador acted at the behest of the United States, it was indifferent to Plaintiffs’ detention outside of honoring its arrangement with the United States, and the United States retained the ability to control their release from CECOT,” a maximum security prison in El Salvador, he said.
Even though the plaintiffs are no longer in El Salvador, Boasberg said he had jurisdiction because they were in El Salvador, and therefore in U.S. custody, when the lawsuit was filed.
Boasberg stated that the plaintiffs seek a return to the United States, but he acknowledged that some might prefer to stay in their country of origin. For Venezuelans, attorneys have also had difficulty contacting individuals due to “logistical difficulties, geographical dispersion, and fear of surveillance in Venezuela,” he said.
The Justice Department could find success in challenging Boasberg’s order at the U.S. Court of Appeals for the D.C. Circuit, which has already halted some of Boasberg’s actions and released opinions critical of his actions. After Boasberg issued a similar order, a panel of three judges indicated in August that he was intruding on executive authority.
“Federal courts likely cannot order the Executive Branch to engage in diplomacy or to reach specified diplomatic goals,” the judges said in an unsigned opinion. They ultimately refrained from issuing a firmer decision on the question of executive authority after El Salvador and Venezuela reached an agreement to transfer the Venezuelan nationals from CECOT.
Instead, the judges removed Boasberg’s existing order while returning the case for further litigation. Prior to that decision, it had also ruled against an order in which Boasberg said he found probable cause to hold the administration in contempt of court for not following his initial blocks on deportations.
Despite those blocks being removed by the Supreme Court, Boasberg said he had the authority to investigate a potential refusal to comply. At the time, he said the administration could “purge” its contempt by reasserting custody over the deportees. Another panel of three judges specifically objected to this portion of Boasberg’s order but didn’t foreclose the possibility of him further investigating contempt.
By December, Boasberg had issued another order seeking to probe potential contempt by hearing testimony from current and former administration attorneys. That order was temporarily stayed earlier this month while the D.C. circuit looked more deeply into the issue.
So far, the Supreme Court has offered mixed and tentative rulings on Trump’s deportations under the Alien Enemies Act. Earlier this year, it blocked some deportations and affirmed a Maryland judge’s requirement that the administration facilitate the return of Salvadoran national Kilmar Abrego Garcia, who was deported with others in March.














