Appeals Court Halts Judge Boasberg’s Contempt Order in Deportations Case

The appeals order came on the same evening as an emergency hearing before Boasberg.

District Judge James Boasberg, chief judge of the District Court for the District of Columbia, at E. Barrett Prettyman Federal Courthouse in Washington on March 16, 2023. Carolyn Van Houten/The Washington Post via AP

An appeals court has temporarily halted U.S. District Judge James Boasberg’s order finding probable cause the Trump administration was in contempt for not complying with his order prohibiting deportations under the president’s proclamation in March.

“The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal or a writ of mandamus and should not be construed in any way as a ruling on the merits of that motion,” an order from the U.S. Court of Appeals for the D.C. Circuit said on April 18.

The administration’s appeal came before three circuit judges: Judges Cornelia Pillard, Gregory Katsas, and Neomi Rao. According to the order, Pillar would not have administratively stayed Boasberg’s order, which indicated the administration would face prosecution if it didn’t act to purge the contempt by complying with Boasberg’s order.

The appeals court’s order, which ordered further briefing, came on the same evening that Boasberg held an emergency hearing in the same case. Attorneys for Venezuelan nationals asked Boasberg to issue another restraining order, stating that the administration was moving to deport more people without proper notice.

Boasberg said he lacked authority to issue such an order, given that the Supreme Court had vacated a similar order earlier this month. In that decision, the Supreme Court vacated two of Boasberg’s orders prohibiting deportations while stating that the case had been brought in the wrong court. Boasberg has said that despite the court’s ruling, he can still pursue potential contempt.

In an emergency motion to the D.C. circuit, the administration said Boasberg’s April 16 contempt-related order was directing them to pursue two avenues, both of which it said were unconstitutional.

“Either Defendants must aid the court in its efforts to effectuate a contempt prosecution—a step that unconstitutionally commandeers the President’s exclusive and preclusive prosecutorial powers,” the Justice Department said. “Or, the Defendants may cure contempt by ‘assert[ing] custody’ of individuals who are in the custody of El Salvador—a step that unconstitutionally compels the Executive Branch to persuade or force a foreign sovereign to accede to the court’s demands,”  it added, quoting Boasberg’s opinion.

The rulings represent the latest development in an ongoing clash between the judicial and executive branches following President Donald Trump’s proclamation that invoked the Alien Enemies Act to allow removal of members of the Venezuelan Tren de Aragua gang.

When the Supreme Court vacated Boasberg’s orders on April 7, it added that individuals detained under the act “must receive notice after the date of this order that they are subject to removal under the Act.”

“The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs,” the unsigned opinion from the Supreme Court read. Habeas corpus challenge is the legal avenue specified as appropriate to challenge the legality of their detention.

During Boasberg’s emergency hearing on April 18, American Civil Liberties Union (ACLU) attorney Lee Gelernt alleged that the administration was preparing to remove more people from the country. Justice Department attorney Drew Ensign told Boasberg that no flights were departing that night. He added that while his contacts in the administration weren’t aware of flights planned for April 19, he was told that the administration had the right to remove individuals.

Ensign also denied that the administration had transferred individuals from the southern district of Texas to the state’s northern district because of a temporary restraining order preventing removals from the former. Earlier in the hearing, Gelernt said that people were moved to the northern district where a judge denied another request his team made for a restraining order.

Boasberg asked Ensign about transfers to the northern district and whether the administration was attempting to circumvent an order in the southern district. After a brief recess, Ensign said the northern district was selected for operational reasons and that they came from all over the country, not just the southern district.

During the court’s recess, Trump posted multiple videos on TruthSocial, apparently depicting deportees at an airport and being offloaded from planes.

As Gelernt noted, multiple lawsuits have been filed related to Alien Enemies Act deportations in multiple district courts. In the Southern District of Texas, U.S. District Judge Fernando Rodriguez entered a temporary restraining order on April 11 preventing the administration from removing individuals detained at the El Valle Detention Center. A similar order was issued in the Southern District of New York. In both districts, detainees brought habeas challenges.

Separately, Gelernt’s team has requested relief in the U.S. Court of Appeals for the Fifth Circuit and again at the Supreme Court. An emergency application filed on April 18 asked the Supreme Court to prevent further removals, stating that the administration was violating the court’s April 7 order by not providing a sufficient amount of time to contest their removal.

Before Boasberg, Gelernt said the administration should provide 30 days’ notice for individuals to challenge their detention. He said that the government was issuing notices less than 24 hours before removal. On the court’s docket, the plaintiffs posted photos of documents titled “Notice and Warrant of Apprehension and Removal Under the Alien Enemies Act.”

Part of the documents read: “You have been determined to be at least 14 years of age; not a citizen or lawful permanent resident of the United States; a citizen of Venezuela; and a member of Tren de Aragua. Accordingly, under the Alien Enemies Act, you have been determined to be an Alien Enemy subject to apprehension, restraint, and removal from the United States.” They added that “if you desire to make a phone call, you will be permitted to do so.”

It’s unclear if the documents were the extent of the notice received. Both Boasberg and Gelernt expressed concern that the administration wasn’t providing information about the right to challenge the government’s actions. Boasberg was also skeptical that the short timeframe involved in the notice and removal complied with the Supreme Court’s opinion.

Ensign said the government’s position was that the notice complied with the Supreme Court’s order. He also said that detainees had a 24-hour period to file habeas challenges and that if anyone did so, the administration had no plans to remove them while the petitions were pending.