Nation’s Justice Department Refuses Court Order on Deported Venezuelans

The current administration will reportedly not comply with a court order requiring due process for hundreds of Venezuelan migrants deported to a maximum-security prison in El Salvador last year, according to government lawyers. The stance allegedly sets up a heated confrontation in court next week in a case that observers say is almost certainly headed back to the nation’s highest court.

The status and plight of 252 Venezuelan migrants deported to a Salvadoran prison last March under a centuries-old law have emerged as one of the defining court battles of the leader’s second term, allowing the administration to reportedly test its authority against the federal courts and the practical limits of judicial power on one of the head of state’s biggest policy priorities.

The legal fight has also allegedly put a federal district judge squarely in the administration’s crosshairs as he attempts to determine what due process protections, if any, the government is legally obligated to provide and how far the courts can go to enforce them.

A new filing from the Justice Department made clear the administration believes it owes the migrants no additional due process at all, according to court documents. Should the court try to order otherwise, lawyers for the administration said they would promptly seek intervention from higher courts.

In its filing, the Justice Department argued again that the administration is powerless to return the Venezuelan migrants who were summarily deported last year. The department reportedly rejected the notion that the nation could “facilitate” due process proceedings for the migrants in question as previously ordered by the court, describing the options to do so as either legally impossible or practically unworkable due to alleged national security concerns and the fragile political situation in Venezuela after the reported capture of Venezuelan leader Nicolás Maduro during a raid in the capital last month.

Government lawyers also reiterated their argument that bringing petitioners back to the country would harm “critical” foreign policy negotiations with Venezuela and carry “profound” national security risks, citing the alleged gang member status of the migrants in question. Critics note that the alleged gang member status of many of the individuals has been called into question.

Justice Department lawyers also rejected the notion of conducting the proceedings overseas, including at the nation’s embassy in Venezuela, citing the reported capture and arrest of Maduro and his wife.

The government, they said, lacks custody to conduct the legal proceedings on foreign soil and doing so would risk “injecting an extremely complicated issue into what is already a delicate situation” in Venezuela, potentially “negatively affecting” the nation’s “efforts toward stabilization and transition that aim to benefit tens of millions of Venezuelans.”

The deportations, carried out under the historic law despite an emergency court order from the federal judge, prompted an eleven-month legal battle that reached the top judicial body in April and months of fights in the lower courts, including a subsequent order in December for the government to “facilitate” due process for the deported migrants.

The highest court said then that individuals removed under the law must have the ability to contest their removal and have a meaningful opportunity and notice to do so before they are removed.

The federal judge has spent the months since attempting to determine the status of the hundreds of plaintiffs and what ability the government has to facilitate their return or to provide the class of migrants with due process and legal protections, including the ability to challenge their alleged gang status.

His December order required the administration to submit to the court in writing its plans to provide due process to the class of migrants deported to El Salvador. The judge said the administration could do this by either returning the migrants to face their cases in person or facilitate hearings abroad with members of the class that “satisfy the requirements of due process.”

Lawyers for the Justice Department previewed similar arguments last month before a 17-judge panel of a federal appeals court, which convened to weigh the legality of the administration’s use of the 227-year-old law.

The Justice Department told judges then that the indictment against Maduro “reinforces” findings that the Venezuelan regime and criminal organizations have formed a “hybrid criminal state” and justified the decision to use the historic law to quickly deport them to the third-country prison.

“These new developments underscore the regime’s control and violent invasion or predatory incursion on the nation’s soil. As a result, it is even clearer that the leader’s invocation of the law was part of a high-level national security mission that exists outside the realm of judicial interference,” government lawyers reportedly argued.

Civil liberties lawyers told the judges during the same hearing that the law does not give the administration “a blank check” for a president to “use his war powers any time he considers it valuable.”

Regardless of how the federal judge rules, the new filing made clear that the administration views the fight as far from over.

“If, over defendants’ vehement legal and practical objections, the Court issues an injunction, defendants intend to immediately appeal, and will seek a stay pending appeal,” the Justice Department said, according to court filings.