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Lawyers for the Trump administration asked a federal judge for additional time this week to detail its plans to provide due process for nearly 150 Venezuelan migrants that it deported to the Salvadoran CECOT prison in March, citing the removal of Nicolás Maduro, the Venezuelan leader who was captured by U.S. troops during a surprise raid in Caracas.
In the motion for an extension, submitted to U.S. District Judge James Boasberg, lawyers for the Justice Department cited the “substantial changes on the ground in Venezuela” and the “fluid nature of the unfolding situation” in the wake of the U.S. capture of Maduro and his wife, Cilia Flores.
They requested an additional seven days to comply with the court’s order.
Boasberg, in response, told the Justice Department in a minute order that it had not complied with a local court rule requiring defendants in a civil case to first notify opposing counsel before asking the court for a delay – leaving the matter temporarily unresolved.
The update comes after months of tension-filled status hearings between lawyers for the Trump administration and lawyers for the 252 Venezuelan migrants who were deported to El Salvador’s CECOT prison in March under the Alien Enemies Act, a 1798 immigration law, despite an emergency court order that sought to block the administration from immediately using the law to quickly remove certain migrants.
The status of the migrants, who were removed again to Venezuela from CECOT in July as part of a prisoner exchange, further complicated the case.
The exchange and U.S. involvement appeared to indicate at least some level of constructive custody of the migrants, as the court observed, prompting additional status hearings in the case. It also made it more difficult for lawyers representing the plaintiffs to track down all 252 CECOT migrants, some of whom had fled Venezuela due to persecution in their home country, and who have since remained in hiding.
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The Trump administration proceeded with the deportation flights, kicking off a complex legal fight over the status of the migrants, the U.S. ability to facilitate their return – or at least to provide the migrants with due process protections – and an ability to challenge their alleged gang member status.
Trump officials had argued that the people deported to CECOT were members of the violent Venezuelan Tren de Aragua gang, though the evidence they used to justify their designations has been disputed in many cases, and in many cases determined to be lacking.
Since March, Boasberg has attempted to determine the status of the hundreds of CECOT plaintiffs, what ability the U.S. has to facilitate their return, or to provide the class of migrants with due process and habeas protections, including the ability to challenge their alleged gang status.
Last month, Boasberg ordered the Trump administration to submit to the court in writing its plans to provide due process to a class of Venezuelan migrants deported to El Salvador.
He said the Justice Department must submit to the court by Jan. 5 its plan to provide due process protections to the CECOT class – which he said the Trump administration could do by either returning the migrants to the U.S. to have their cases heard in person – or to otherwise facilitate hearings abroad with members of the class that “satisfy the requirements of due process.”
“On the merits, the Court concludes that this class was denied their due-process rights and will thus require the Government to facilitate their ability to obtain such a hearing,” Boasberg said at the time. “Our law requires no less.”
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The Justice Department’s request for a seven-day extension did not challenge the underlying merits of the order. Instead, they cited only the changing circumstances on the ground in Venezuela, which they said necessitate the additional time.
“Over the weekend, the United States apprehended Nicolás Maduro,” lawyers for the Justice Department said in their request for additional time. “As a result, the situation on the ground in Venezuela has changed dramatically. Defendants thus need additional time to determine the feasibility of various proposals,” they added.
“Defendants therefore request a 7-day extension to evaluate and determine what remedies are possible.”
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Boasberg responded in a terse minute order, noting only that the Justice Department’s request “fails to comply” with the local rule in question, which requires parties to first confer with opposing counsel. He ordered the DOJ to file the relevant notice to opposing counsel by the end of the day.
The update further stalls an ongoing court inquiry that has been on ice for months as the result of appeals court rulings, efforts to shield certain information from the court for national security purposes, and a separate, but related, contempt inquiry.
The CECOT migrants were again moved in July from the Salvadoran prison to Venezuela, as part of a broader prisoner exchange that involved the return of at least 10 Americans detained in Venezuela.
Their role in the prisoner exchange further complicated efforts to ascertain the status of the CECOT class plaintiffs, including some migrants who had fled Venezuela in the first place due to fears of persecution, including from gangs.
That has made it difficult to contact the migrants from the CECOT class and determine how many of them still wished to proceed with their due process cases, as ACLU attorney Lee Gelernt, the lawyer representing the plaintiffs, previously told Boasberg in court.
Some of them remain in hiding, Gelernt said, further complicating efforts to make contact.
The ACLU lawyers told the court in December that, of the 252 Venezuelan migrants that were deported in March to CECOT, 137 still wish to move forward with their due process cases.
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