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(AP) — A federal judge on Wednesday said he’ll order the Trump administration to provide more information about the terms under which dozens of Venezuelan immigrants are being held at a notorious prison in El Salvador, moving a step closer to deciding whether to require the men to be returned to the United States.
District Court Judge James E. Boasberg said he needed the information to determine whether the roughly 200 men, deported in March under an 18th century wartime law, were still effectively in U.S. custody. Boasberg noted that President Donald Trump had boasted in an interview that he could get back one man wrongly imprisoned in El Salvador in a separate case by simply asking. The government’s lawyer, Abishek Kambli, said that and other public statements by administration officials about their relationship with El Salvador lacked “nuance.”
Kambli would not give Boasberg any information about the administration’s deal with El Salvador’s President, Nayib Bukele, who once called himself “the world’s coolest dictator” and is holding immigrants deported from the U.S. at his country’s CECOT prison. He would not even confirm the terms of the deal, which the White House has said are a $20 million payment to El Salvador.
Boasberg wants the information to establish whether the administration has what’s called “constructive custody” of the immigrants, meaning it could return them if he ordered it. The ACLU has asked that Boasberg order the return of the men, who were accused of being members of a gang Trump claimed was invading the country. Minutes after Trump unveiled his proclamation in March, claiming wartime powers to short-circuit immigration proceedings and remove the men without court hearings, the immigrants were flown to El Salvador.
That happened despite Boasberg’s ruling that the planes needed to be turned around until he could rule on the legality of the move, and he is separately examining whether to hold the government in contempt for that action.
After the March flights, the U.S. Supreme Court unanimously ruled that no one could be deported under the Alien Enemies Act of 1798 without a chance to challenge it in court. Since then, three separate federal judges have ruled that Trump’s invocation of the act was illegal because the gang he named is not actually at war with the U.S. It’s likely that those rulings will be appealed all the way back up to the Supreme Court.
Kambli on Wednesday acknowledged that the men deported on the March flights did not get the chance to contest their designation under the Alien Enemies Act, or AEA, as the high court requires. But he argued that Boasberg cannot conclude the United States still has custody of the men. If the U.S. asks for them back, Kambli said, “El Salvador can say ‘No.'”
When it required court hearings for those targeted by the act, the high court also took much of the AEA case away from Boasberg, ruling that immigrants have to contest their removal in the places they’re being detained, not Boasberg’s Washington, D.C., courtroom. Boasberg, who’d blocked removals nationwide initially, has held onto some of the case, including the fate of the men who were first deported.
Trump and some Republican allies have called for impeaching Boasberg, who was nominated to the bench by Democratic President Barack Obama. Those calls prompted a rare statement from Supreme Court Chief Justice John Roberts, who said “impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Boasberg hinted Wednesday he may ultimately require that the deported men receive the due process the high court requires, be it by bringing them back or ordering them moved to another facility, like Guantanamo Bay, fully under U.S. control.
There was also a hint that Boasberg was aware of the way Trump and his supporters have spun the legal decisions in the case. He noted that some in the government have described the initial Supreme Court ruling as a victory in which the court upheld the legality of Trump’s proclamation.
Noting that there was an open line so the public could listen to the hearing, Boasberg read from that ruling, which states explicitly that it does not address the legality of labeling the gang a foreign invader.
“We agree,” Kambli said. “they did not handle that precise issue.”
Riccardi reported from Denver
