Kristi Noem made final call on deportation flights after judge ordered planes to turn back, DOJ says
The Justice Department said Tuesday that Homeland Security Secretary Kristi Noem was the Trump administration official behind the decision not to comply with a federal judge’s order to halt the deportation of alleged Venezuelan gang members to El Salvador under the Alien Enemies Act.
In a court filing, the Justice Department said administration officials conveyed U.S. District Judge James Boasberg’s March 15 oral order to return alleged Venezuelan members of the Tren de Aragua gang to the United States, as well as the subsequent written order the same day that blocked the federal government from removing members subject to the Alien Enemies Act under President Donald Trump’s invocation of the 18th century law.
The filing said Justice Department officials relayed the order and provided legal advice to the acting general counsel for the Department of Homeland Security, who conveyed that advice, as well as his own, to Noem. Noem then decided that detainees under the Alien Enemies Act who were removed from the United States before the court’s order could be transferred to El Salvador.
A DHS spokesperson did not immediately respond to a request for comment on the Justice Department filing Tuesday night.
The filing, which came 255 days after 261 people were loaded onto three planes in the United States bound for El Salvador, reveals for the first time who in the Trump administration was responsible for making the final decision. It comes as Boasberg said he wanted to revive criminal contempt proceedings against administration officials who authorized the deportation flights.
The Justice Department’s disclosure is an attempt to provide Boasberg with information he has requested for months in an effort to avoid high-ranking officials’ being ordered to publicly testify about their actions that day.
Chief U.S. District Judge James Boasberg in Washington, D.C., on Nov. 3.Saul Loeb / AFP – Getty Images file
Boasberg barred the administration from deporting alleged Tren de Aragua members using the wartime Alien Enemies Act in March, saying the deportees most likely did not receive due process. The administration executed flights carrying deportees under the act anyway.
The Justice Department has argued that Boasberg’s written injunction halting the deportations had no bearing on those already removed from the country. In the filing Tuesday, the administration maintained that its decision was “lawful” and “consistent with a reasonable interpretation of the court’s order.”
The decision to authorize the flights came amid the administration’s early showdown with judges who ruled against some of Trump’s policies and tactics.
In April, the Supreme Court threw out Boasberg’s decision while still saying detainees must receive due process. That approach to due process has continued in other courts.
A whistleblower alleged in June that former Principal Deputy Attorney General Emil Bove — who the court said Tuesday was one of the Justice Department officials who provided DHS with legal advice — had told subordinates they would need to consider ignoring court orders. Bove denied the accusations during Senate confirmation hearings for his nomination to the 3rd U.S. Circuit Court of Appeals. “I have never advised a Department of Justice attorney to violate a court order,” he said.
The whistleblower is one of the people Boasberg indicated he intends to hear testimony from in any contempt proceedings.
The Trump administration is seeking a final ruling from Boasberg on the issue, and it could appeal after that. But Boasberg is pushing to get to the bottom of what happened on March 15 and why his orders weren’t followed. An appeals court allowed him to continue with contempt proceedings this month.
Plaintiffs want to put at least nine past or present Trump administration officials on the witness stand for a contempt hearing.
The list of potential witnesses includes Bove, a 3rd Circuit appeals judge; whistleblower Erez Reuveni, formerly acting deputy director of the Justice Department’s Office of Immigration Litigation; and Deputy Assistant Attorney General Drew Ensign, whom the Justice Department filing pointed to Tuesday as having conveyed Boasberg’s oral and written orders to DHS.
