U.S. District Judge James Boasberg is using a new tool to press Department of Justice lawyers over their attempts to brush off responsibility for migrants the United States has sent to a Salvadoran prison: the president’s words.
Boasberg held a hearing Wednesday in part to hear arguments over which country technically has custody of the jailed migrants who were denied due process before being rapidly deported to El Salvador on March 15. Boasberg explicitly referenced President Donald Trump’s comments in an ABC interview last week that he “could” have Kilmar Armando Abrego Garcia — who federal officials initially acknowledged was improperly deported — returned to the U.S. with a phone call.
“Was the president telling the truth when he said he could pick up the phone and have Mr. Abrego Garcia be released or not?” Boasberg asked a team of DOJ lawyers.
After some demurring, Deputy Associate Attorney General Abhishek Kambli couched the government’s official position this way: “That goes to the president’s belief of the influence he has.”
Three federal judges have now blocked Trump’s invocation of the 1798 Alien Enemies Act to rapidly deport migrants, and several lawsuits are attempting to force the U.S. government to bring back the hundreds of Salvadorans and Venezuelans who ICE agents quickly removed earlier this year.
And while the Supreme Court ordered the administration to provide migrants targeted for removal with adequate time to challenge their designations as “alien enemies,” Trump officials in practice have given jailed migrants as little as 12 hours notice in the form of English-only paperwork that doesn’t even hint at the fact that detainees have the right to push back by quickly filing what are called habeas corpus lawsuits.
The American Civil Liberties Union, which is behind several legal challenges, wants Boasberg to force the administration to provide targeted migrants with 30 days notice. But first, the judge said he wants to ascertain whether top Trump officials are the proper subjects of the lawsuit — and if the government that deported them is ultimately responsible for their ongoing captivity.
Kambli argued in court Wednesday that El Salvador has the final say on what happens to the detainees who were flown out of the United States on government chartered flights.
“There is no agreement or arrangement by which the United States maintains any agency ... where El Salvador provides us the constructive custody on the people that we send them,” Kambli said.
Boasberg pushed back with more context from what’s happening beyond courthouse walls.
The judge cited White House press secretary Karoline Leavitt’s claim in March that “it was approximately $6 million to El Salvador for the detention of these foreign terrorists.”
To that, Kambli defended the use of foreign “grants.”
Then Boasberg replied citing Homeland Security Secretary Kristi Noem’s public remarks after visiting CECOT, El Salvador’s so-called Terrorism Confinement Center, during which she stated, “Know that this facility is one of the tools in our toolkit that we will use if you commit crimes against the American people.”
“So again, is she wrong about that?” Boasberg asked.
Kambli stood his ground, saying he wouldn’t “parse out” every statement by a government official on the matter.
“That’s another way of saying these statements aren’t true?” Boasberg said with a chuckle.
“No, your Honor, that’s not what I’m saying at all,” Kambli responded.
The back-and-forth got more heated when Boasberg pressed DOJ lawyers trying to defend the speed at which the migrants were removed from the country.
“They got some notice. I’m not sure the precise contours of that,” Kambli shot back at one point.
“There wasn’t even 12 hours. You’re not going to stand here and say they received due process,” Boasberg said, raising his voice.
The judge later took the same tone when cornering DOJ lawyers with pointed questions.
“Transferring them to CECOT without due process means that you violated their rights, fair?” the judge declared.
“Your Honor, I don’t know if I’d frame it in those terms,” Kambli said.
In the coming weeks, the ACLU and DOJ are expected to submit additional evidence to support their arguments before Boasberg makes decisions about whether to certify a more sweeping class action lawsuit and if the U.S. government should be held legally responsible for the detained migrants.
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Jose Pagliery is a reporter at NOTUS.