A federal district court judge in Boston ruled on Wednesday that the Trump administration’s attempt to send several immigrants from other countries to South Sudan violated a court order blocking the government from deporting people to third countries without allowing them to object to their removal.
Judge Brian E. Murphy in the US District Court for the District of Massachusetts said at Wednesday’s hearing that there was no doubt that the Department of Homeland Security’s actions were “unquestionably violative” of his April 18 preliminary injunction, which requires the government to provide people with a “meaningful opportunity” to express a fear of being returned to a country that is not their own. Judge Murphy also left open the possibility of a future finding that the violation constituted criminal obstruction.
“It wasn’t possible for these people [to have] a meaningful opportunity to object to their transfer to South Sudan,” Judge Murphy said. He noted the less than 24 hours the men were afforded outside of business hours to consult with an attorney before being put on a plane was “plainly insufficient.” Judge Murphy added later, “I don’t see how anybody could say that these individuals had a meaningful opportunity to object.”
Lawyers for a group of men at risk of being sent to third countries filed an emergency motion on Tuesday after learning that the Trump administration planned to remove detained immigrants to South Sudan, which became independent in 2011 and where a devastating civil war may resume shortly. They asked the court to halt their deportations from the Port Isabel detention center in Texas and return the men to the United States if they had already been removed.
“The department’s actions in this case are unquestionably violative of this court’s order.”
The complaint alleges at least two of the men, a national of Myanmar identified as N.M., and T.T.P., a Vietnamese man, were given a notice of removal on Monday, May 19, in English only, despite the requirement in Judge Murphy’s preliminary injunction that the form be provided in a “language the alien can understand.” They declined to sign the notice, according to court documents.
A Justice Department attorney said during the hearing that the men remained in the custody of Immigration and Customs Enforcement. The plane reportedly landed in Djibouti, in East Africa, according to ICE flight trackers and the New York Times, instead of South Sudan. As of Wednesday, the men were still believed to be in Djibouti, which is home to a US military base.
Following the hearing, Judge Murphy issued a written order containing remedies that stopped short of ordering that the men be returned to the United States. Instead, his order mandates that the government screen the men to determine whether they have a reasonable of fear being deported to a third country in a way that is “commensurate with the access they would receive were they in DHS custody within United States borders.” Any lawyers representing the men will be allowed to attend the interview in person or remotely and the individuals will also be provided with a phone and contact information for counsel handling the class-action lawsuit.
Judge Murphy elaborated in a separate filing the parameters of “meaningful opportunity.” He noted people subject to removal to a third country should be given at least 10 days after receiving notice to express a fear of return and seek protection from deportation under the Convention Against Torture. If their claim fails, they are entitled to a 15-day window to try to reopen their case.
Trina Realmuto, the executive director of the National Immigration Litigation Alliance, represented members of the class-action lawsuit at the hearing. She said that a system of remote reasonable fear interviews would be a “logistical nightmare” compared to bringing people back to the United States. Realmuto argued that, in effect, the men were being punished for the government’s violation of the preliminary injunction.
The government insisted at the hearing that it had complied with the court’s order, arguing that the men had previously been ordered deported from the United States and already had a chance to express a fear of return. When pressed about how much time and due process the men should be given to do so, a Justice Department attorney argued that 24 hours was sufficient and standards for expedited removal, a fast-track process to deport people in “hours or minutes,” should apply in this case.
On Wednesday morning, DHS officials told reporters that eight men—only one of whom is from South Sudan—had been put on a Tuesday deportation flight. Court records show that at least two of the men received a form stating that they were being sent to South Sudan. The department’s livestream for the press briefing was titled “DHS Press Conference on Migrant Flight to South Sudan.” Nonetheless, DHS spokesperson Tricia McLaughlin refused to confirm that the plane was bound for South Sudan due to “safety and operational security.”
“The Supreme Court of the United States, the Assistant Solicitor General, Congress, common sense, basic decency, and this Court all disagree.”
“No country on earth wanted to accept them because their crimes are so uniquely monstrous and barbaric,” McLaughlin said. According to DHS, five of the men were charged or convicted of homicide or murder, one was convicted of sexually assaulting a mentally incapable woman, and another was convicted of a sex crime involving a child.
The original complaint filed against DHS in late March sought to protect immigrants at risk of being deported to third countries where they could potentially face torture and other forms of persecution. Last month, Judge Murphy largely sided with the plaintiffs by issuing the preliminary injunction. He began the order with a scathing rebuke of the government’s conduct:
This case presents a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there? Defendants argue that the United States may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation. All nine sitting justices of the Supreme Court of the United States, the Assistant Solicitor General of the United States, Congress, common sense, basic decency, and this Court all disagree.
Later in the preliminary injunction, Judge Murphy took the Trump administration to task for arguing at a March hearing that people can be sent to a third country without due process, even if they fear that they will be killed there. The judge asked at the hearing, “Is your position that the Government can decide right now that someone who is in their custody is getting deported to a third country, give them no notice and no opportunity to say, I will be killed the moment I arrive there. And, as long as the Department doesn’t already know that there’s someone standing there waiting to shoot him, that that’s fine?”
“In short, yes,” a Justice Department attorney replied.
On May 7, less than three weeks after Judge Murphy issued his preliminary injunction, lawyers for the plaintiffs asked for an emergency order in response to reports that the Trump administration was planning to imminently deport people to Libya. “This motion should not even be required as it blatantly defies this Court’s preliminary injunctions to remove class members without proper notice,” the lawyers argued. Judge Murphy quickly sided with the plaintiffs and agreed that the motion should not be required in light of his earlier preliminary injunction.
A declaration later submitted by Johnny Sinodis, a lawyer at Van Der Hout LLP, a San Francisco-based immigration law firm, made clear how close people came to being sent to Libya. Sinodis stated that one of his clients—a Filipino national—had been woken up in the middle of the night by detention center guards in riot gear at a Texas detention center. He was then shackled, put onto a bus with twelve other people, and taken to an airport. While there, they waited alongside a “large military plane” for a few hours before being brought back to the detention center instead of being deported—presumably to Libya. (Last year, the UN High Commissioner for Human Rights Volker Türk said that “trafficking, torture, forced labor, extortion, starvation in intolerable conditions of detention” for migrants and refugees are “perpetrated at scale…with impunity” in the country.)
On Monday, Texas-based attorney Jonathan Ryan received a call from his client N.M., the plaintiff from Myanmar in the case and one of the men slated for deportation to South Sudan. The call, from the Port Isabel detention center, only lasted a few seconds before the connection dropped, but N.M. told Ryan he had been given a document and had refused to sign it.
Ryan still isn’t sure where his client is—in Myanmar or in Djibouti with the other men.
Later that day, ICE sent Ryan a copy of the notice of removal stating that his client was going to be removed to South Africa. Not long after, Ryan said, he received another email retracting the first communication. Then a third one appeared containing a new notice of removal, this time to South Sudan.
On Tuesday, Jacqueline Brown, a professor at the University of San Francisco School of Law and the director of its Immigration and Deportation Defense Clinic, wrote in a declaration that she saw that N.M. was listed as no longer being in ICE custody. When Brown emailed the detention center to ask which country he had been removed to, she received a two-word response: “South Sudan.”
The Trump administration on Tuesday said in court that they believed N.M. actually was going to be removed to Myanmar, his country of birth. At the Wednesday hearing, Judge Murphy questioned the government about the reason for the change, given that N.M. had been told he was going to be sent to South Sudan—theoretically because the US government couldn’t remove him to Myanmar. (US law authorizes third-country deportations when removal to a place of origin or elsewhere is “impracticable, inadvisable, or impossible.”)
Judge Murphy expressed concern that the Trump administration may have only decided to send him to Myanmar and not South Sudan because he has a lawyer. “How is that possible?” the judge asked about the possibility of disparate treatment based on access to legal counsel. Later on Wednesday, he issued a separate order requiring the government to submit a detailed declaration by Thursday that explains how it ultimately decided to deport N.M. to Myanmar.
On Wednesday afternoon, Ryan still wasn’t sure where his client was—in Myanmar or perhaps in Djibouti with the other men. “As far as I’m concerned, my client was disappeared,” he told Mother Jones. “He continues to be disappeared and I’m not sure if I will ever hear from him again, or if anybody will ever hear from him again.” Ryan said he feared how the government of Myanmar would treat his client given how DHS has publicized his criminal history. Records show N.M. was convicted of sexual assault in Lancaster County, Nebraska, after being accused of assaulting a woman with severe mental disabilities.
“This is not about sending this man or a group of men to another country because of their criminal backgrounds,” he said. “What this is actually about is the executive branch boldly and blatantly disregarding a federal court order, potentially in a state of criminal contempt. This is about the executive branch violating fundamental due process and constitutionally protected rights and breaking the law.”
“These are not privileges that are reserved for the innocent or the well-liked,” Ryan added. “These are fundamental rights that protect us all.”
This post has been syndicated from Mother Jones, where it was published under this address.