Left: U.S. District Judge James Boasberg, chief judge of the United States District Court for the District of Columbia, stands for a portrait at E. Barrett Prettyman Federal Courthouse in Washington, March 16, 2023 (Carolyn Van Houten/The Washington Post via AP, File). Right: Neomi Rao, President Donald Trump's nominee for a seat on the D.C. Circuit Court of Appeals, appears before the Senate Judiciary Committee for her confirmation hearing, on Capitol Hill in Washington, Tuesday, Feb. 5, 2019 (AP Photo/J. Scott Applewhite).
The Trump administration "whisked away" 137 Venezuelan men to a prison for terrorists in El Salvador without a hearing and despite a judge's restraining order on a weekend in March 2025. Now, advocates say that the Alien Enemies Act (AEA) deportees should get individual chances to show they aren't Tren de Aragua gang members, as "flimsy" evidence alleged.
An attorney with the American Civil Liberties Union (ACLU), while vigorously arguing that point before the U.S. Court of Appeals for the District of Columbia Circuit on Friday morning, pointedly criticized the DOJ for its position that there can be no "remote hearings" because there's no jurisdiction in the case captioned J.G.G. v. Trump.
ACLU Immigrants' Rights Project Deputy Director Lee Gelernt has extensive experience arguing AEA challenges in federal appeals courts, but this time he had to convince U.S. Circuit Judge Neomi Rao.
The Donald Trump-appointed jurist joined a decision last year that chided Chief U.S. District Judge James Boasberg for his "clear abuse of discretion" in holding the Trump administration in criminal contempt for violating a March 15, 2025, temporary restraining order the U.S. Supreme Court later vacated.
Rao again skewered the chief judge in April for resuming his contempt inquiry, calling it an "unwarranted judicial intrusion into Executive Branch decisionmaking regarding matters of national security."
Whether the latest iteration of Boasberg's contempt inquiry can move forward remains to be seen, but the full — en banc — D.C. Circuit will hear arguments on that issue as soon as Tuesday.
This appeal concerns Boasberg's order that the government "facilitate the return from third countries" of AEA deportees who "desire" to come back to the United States as their habeas cases proceed.
In that order, Boasberg blasted the "defiance" of his court order and the "flagrancy" of the government's due process violations as "solution-less mire."
Casting the DOJ as "apparently not interested in participating in this process" and as having "essentially told the Court to pound sand," Boasberg issued his order cognizant of the then-recent U.S. capture of Venezuelan leader Nicolas Maduro — "treading lightly, as [he] must, in the area of foreign affairs."
While not ordering the government to facilitate the return of "deportees remaining in Venezuela," Boasberg did allow deportees in third countries or Venezuela to file documents challenging their AEA designations and their alleged Tren de Aragua memberships.
Against that backdrop, Gelernt argued that the government is "asking for an extraordinary rule" that could amount to a "disturbing loophole."
"What they are saying is, they can send essentially whisk people away to a foreign prison, give them no opportunity to contest the removal," he said, "and then say because we got them out of the country into a foreign prison, that's the end of the matter."
"This is a path to perfect lawlessness and one that courts cannot condone," Gelernt said.
Rao said that there appeared to be "a fair amount of evidence that the U.S. had had some control over these detainees at a minimum" once they were in El Salvador, but not "evidence that they had the type of control that would enable them to, on command, produce one of the detainees" in a habeas action.
"It seems that that's what petitioners need to show," Rao said, acknowledging that the record "shows that there's some diplomatic fudging about control."
"Diplomacy is like that, right? There's sensitivities. There are two countries respecting each other's sovereignty, so it seems to me from the case law, petitioners have the burden to demonstrate jurisdiction," the circuit judge continued. "So they have the burden to demonstrate there's constructive custody, and so there needs to be some showing that the U.S. had that type of control, the control that they could produce, you know, a detainee on command, and I don't see that evidence from petitioners."
Gelernt answered that the U.S. "certainly had legal custody" but that "even if it was just shared" custody "that's enough" to show the U.S. had some control over detainees abroad, and enough to establish habeas jurisdiction.
Near the start of the hearing, DOJ attorney Tiberius Davis took the position that "remote hearings" were a nonstarter.
"There are a lot of questions here that make having to do a potential hundreds of over 100 remote hearings in countries across the world would be completely inequitable," he said. "There would be no jurisdiction. I think there would be a lot of problems with what [Boasberg] ordered."
"That's just the end of this case," Davis asserted on the jurisdictional question.
In his exchanges with Rao, Gelernt cited that as an example of the government intransigence he's up against.
"Everything the district court suggested, the government balked at. I mean, remote hearings. DHS has a specific policy about doing remote hearings. They do it all the time," he said, mentioning the en banc contempt proceeding to come.
Catching himself for a moment, the attorney said, "I don't want to inject that. I'll put that aside."
"That's certainly within your right to do," Rao said. "But we first have to figure out because we're an Article III court whether we have jurisdiction."
That's when Gelernt pounced.
"So that's what I'm saying. It goes to the due process. Put aside that they lied to Judge Boasberg Saturday morning and all that," he said.
"Can't help yourself," Rao interjected, with a chuckle.
"They've already admitted that, but I don't, I don't want to get into — sorry, Judge Rao. I apologize," the lawyer said.
While Senior U.S. Circuit Judge Harry T. Edwards, a Jimmy Carter appointee, appeared to warm to the petitioners' case, Senior U.S. Circuit Judge A. Raymond Randolph, a George H.W. Bush appointee, interpreted Boasberg's ruling as ordering detainees "free in Venezuela" back into custody.
"They're not in custody now, and if the government or if they any one of these individuals decides to show up at the border, they will be in custody, and that's the remedy," Randolph stated.
Edwards said the remedy would instead be to "get a hearing as to whether it was a violation of due process."
"It's the due process question, and whether or not he was shipped out when you had rights to exercise, and the government denied you the opportunity to do that," Edwards added.
"That's right, Judge Edwards," Gelernt said, detailing that some deportees "are in hiding" in Venezuela.
"There are some we can't find because they're in hiding in Venezuela. I think we will find them eventually, but it's not as if they're released and they're walking around the streets, you know, in a free country," the ACLU attorney said.