Judge raises the stakes in deportation battle with Trump

U.S. District Judge James Boasberg upped his feud with President Trump on Wednesday by finding probable cause to hold his administration in contempt of court for continuing to carry out deportations to El Salvador despite the judge’s orders to turn around planes.

Judge Boasberg, an Obama appointee to the court in the District of Columbia, said he would give Mr. Trump’s team a chance to fix the situation by giving hundreds of gang suspects a chance to challenge their deportations. Otherwise, he said, he would figure out which Trump officials are responsible for defying his orders, and he would refer them for criminal prosecution.

He said if the Justice Department refused, he would appoint another attorney to prosecute the case.

Judge Boasberg said the government’s conduct throughout March 15 — the day he ordered deportation flights to return to the U.S. — seemed to be an attempt to deport the migrants as quickly as possible to evade judicial scrutiny.

“Taken together, this behavior indicates ‘deliberate or reckless disregard’ of the order … leading this court to conclude that there is probable cause that defendants willingly disobeyed a binding judicial decree,” the judge ruled.

The Justice Department quickly filed a notice appealing the ruling.

“The president is 100% committed to ensuring that terrorists and criminal illegal migrants are no longer a threat to Americans and their communities across the country,” said White House Communications Director Steven Cheung.

At issue were three planeloads of migrants sent March 15 to El Salvador. Most of them were Venezuelans whom Mr. Trump believed to be part of the Tren de Aragua gang and whom he was deporting using powers under the Alien Enemies Act.

That 1798 law allowed him to bypass the regular immigration system and speed the deportations by dint of his having declared Tren de Aragua a terrorist organization involved in an invasion or incursion into the U.S.

Attorneys had filed a lawsuit early March 15 to try to delay the deportations. They argued that some of the potential targets weren’t members of the gang.

Judge Boasberg quickly ordered a hearing.

The government continued its deportation plans, although it pulled the named plaintiffs in the lawsuit off the manifest, so they weren’t deported.

After the first two planes were in the air, Judge Boasberg ordered that they be turned around and future flights grounded.

The Trump administration continued the flights, arguing that the planes were out of U.S. airspace and beyond the judge’s jurisdiction.

A third plane took off after the order, but the government said those migrants were deported under the regular immigration law and beyond the reach of Judge Boasberg’s order, which applied only to deportees under the Alien Enemies Act.

Judge Boasberg said the government hid details of the flights from him during the March 15 court hearing as it “rushed to load people onto planes and get them airborne.”

“Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the government itself later told the Supreme Court is ‘obviously’ available to them,” the judge ruled.

Mr. Trump and Judge Boasberg have been battling for weeks. The president has called for the judge’s impeachment.

The Supreme Court weighed in on the case and found that Judge Boasberg didn’t have jurisdiction to hear it. The justices said the proper challenge to Alien Enemies Act deportations is a “habeas” proceeding, a narrow but powerful challenge to the government’s detention.

Habeas challenges need to be brought in the location where someone is being held, and none of the Venezuelan deportation targets were in the District of Columbia, where Judge Boasberg sits.

Judge Boasberg said Wednesday that even though the big legal issues are beyond his reach, the defiance of his original orders is still within his jurisdiction.

His ruling Wednesday is the furthest any judge has gone in holding members of Mr. Trump’s team in contempt.

Judge Paula Xinis, another Obama appointee on the U.S. District Court in Maryland, is exploring contempt over the deportation of Kilmar Abrego Garcia, who was on one of the three March 15 planeloads.

Judge Xinis has ordered the government to bring Mr. Abrego Garcia back from prison in El Salvador.

Judge Boasberg told the government that it should give the deportees a chance to challenge their removal somehow. That doesn’t necessarily mean they must be returned to the U.S., much less released into communities.

He said he would let the government suggest other ways to “purge” the contempt behavior.

Without a purge, he said, he could pursue criminal prosecution.

Rep. Hank Johnson, the top Democrat on the House Judiciary Committee’s courts subcommittee, cheered Judge Boasberg.

“This is what checks and balances look like,” he said. “No one is above the law.”

Matthew O’Brien, a former immigration judge now with the Immigration Reform Law Institute, said Judge Boasberg was “spiraling.”

He said that despite the Supreme Court’s finding that he was operating outside his jurisdiction, Judge Boasberg was still trying to enforce his will on the administration.

“He’s off on his own,” Mr. O’Brien said. “What it looks like he’s trying to do is use a contempt order to force the government to engage in an exercise of the diplomatic foreign affairs power.”