DOJ has contradicted itself on when immigration removal is complete, ACLU argues
The ACLU cited a government filing from earlier this month.
In a court filing Monday in the Alien Enemies Act (AEA) case before D.C. Judge James Boasberg, the American Civil Liberties Union (ACLU) contended that in another case in D.C. District Court the Trump administration has taken a position at odds with its arguments in the AEA case; specifically over the issue of when the process of "removal" of a detainee is considered complete.
In the AEA case, the government has argued -- among other things -- that it did not violate the court's orders to turn deportation flights around because the removals had "already occurred" once the two planes heading to El Salvador were out of United States airspace.
"The Government did not 'remove' any class members after that time under the AEA," DOJ lawyers wrote in a court filing on March 25, "To be sure, the Government had already removed some before the injunction. But nothing in the minute order suggested that the Government had to return already-removed class members to the United States," the filing states.
"Indeed, the Government could not possibly have 'removed' them from a place they had already departed," the government lawyers wrote.
In its response filed Monday, the ACLU contended that the government's position is wrong, arguing that the DOJ's theory runs counter to the court's orders and to "common sense and the government's own position in other cases" in the same U.S. District Court.
The ACLU cited a March 10 government filing in a separate case pertaining to the potential transfer of immigration detainees to Guantanamo Bay. In that filing, the DOJ argued that "[to] effectuate a departure or removal, the alien must lawfully enter another country" and that "the removal process is not complete until the individual reaches the final destination."
"Indeed, it would lead to an impossible situation if the government's broad removal and detention powers under the [Immigration and Naturalization Act] were held to instantly terminate as soon as the detainee's flight left U.S airspace. Detainees placed on ICE-operated removal missions must remain subject to [Enforcement and Removal Operations] custody and adhere to ICE transfer and transportation policies until they have arrived at the country of removal, only at which point custody can be relinquished," the March 10 filing stated.
Judge Boasberg has not yet weighed in on the ACLU's highlighting of the allegedly contradictory positions taken by the DOJ in the two cases, and he may not. A hearing is scheduled for Thursday on the question of whether the Trump administration acted in defiance of his order to return planes to the U.S.
In the AEA case before Boasberg, the DOJ has advanced several other arguments for why it did not violate the court's order, including that Boasberg's written order did not command the planes to turn around; and that it was beyond the Court's authority to adjudicate and assess the president's inherent Article II powers, which DOJ lawyers argue in court filings were "independently sufficient to support his directions with respect to flights and terrorists outside the United States."
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