Secretary of Homeland Security Kristi Noem made the final decision to allow a group of deportees to be handed over to El Salvador after a judge said their flights must be returned to the United States, the Justice Department said in a court filing Tuesday.
The filing came as U.S. District Judge James Boasberg continues his inquiry into whether the Trump administration violated his orders to halt the mid-March deportation flights, including his verbal directive for the government to “turn around a plane” if necessary. Boasberg has accused the government of showing a “willful disregard” for his rulings.
The administration, the Justice Department argued on Tuesday, “did not violate” Boasberg’s order, and “no further proceedings are warranted or appropriate.”
But the administration did identify which Department of Homeland Security and Justice Department officials were involved in the decision not to turn the deportation flights around.
Shortly after Boasberg issued his rulings, Justice Department official Drew Ensign conveyed them to the DHS and Justice Department leadership, according to Tuesday’s filing. Then, Deputy Attorney General Todd Blanche and Principal Associate Deputy Attorney General Emil Bove offered advice to DHS’s acting general counsel, who passed on the advice to Noem.
Noem concluded the class of detainees “who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador,” according to the filing.
The filing says this move “was lawful and was consistent with a reasonable interpretation of the Court’s order.”
The flights in question were part of a Trump administration initiative to send accused Venezuelan gang members to El Salvador, whose government held them in prison for months. The administration argues that gambit was legal under the Alien Enemies Act of 1798 and warranted as part of its crackdown on violent crime, but it has faced pushback from courts and advocates who argue the deportees weren’t given sufficient due process.
One lawsuit brought by migrants led Boasberg to order a temporary halt to removals under the Alien Enemies Act, including by returning deportation flights that had already taken off. But the midair flights continued on to El Salvador. Boasberg accused the government of disobeying those orders, and said there is probable cause to hold the government in contempt of court.
The administration has long denied that it disobeyed Boasberg, pointing to discrepancies between his written and verbal orders on March 15. The judge blocked a set of Alien Enemies Act deportations in his written order, but unlike in his verbal order earlier in the day, he didn’t explicitly reiterate that the government must turn around planes that were already en route.
Appeals court judges tossed out Boasberg’s finding of probable cause, but a different panel later said that Boasberg, who is the chief judge for the U.S. District Court in Washington, D.C., could continue his probe into whether the Trump administration had violated his court order. He signaled last week that he will resume his contempt of court inquiry.
The American Civil Liberties Union, which represents the plaintiffs, has asked for more than half a dozen potential DHS and Justice Department witnesses to be put on the stand in open court to testify about the decision not to turn the planes around.
One witness that the ACLU suggested is former Justice Department attorney Erez Revueni, who has accused the department of trying to defy or mislead judges in several instances, including in the deportation case. The department has denied Reuveni’s allegations.
The department responded on Tuesday: “No live testimony is warranted at this time.”
