The Justice Department said Homeland Security Secretary Kristi Noem gave the final sign-off to deport 100 Venezuelans to El Salvador in March, even as a federal judge had ordered the government to return them amid a dispute over the chaotic timeline.
In a filing on Tuesday, DOJ officials said Noem's approval — made after receiving legal guidance from department lawyers — did not violate the court's order. The migrants, rounded up under the Alien Enemies Act, were already en route when the judge issued the directive, the department said.
"After receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the court's order could be transferred to the custody of El Salvador," Justice Department lawyer Tiberius Davis said in the filing.
"That decision was lawful and was consistent with a reasonable interpretation of the court's order," Davis said.
The DOJ's response landed before U.S. District Judge James Boasberg, who says his order was defied. He has launched a criminal contempt probe and ordered the government to identify everyone involved, so he can determine where the process failed.
"Although the substance of the legal advice given to DHS and Secretary Noem is privileged, the Government has repeatedly explained … why its actions did not violate the Court's order, much less constitute contempt," the government wrote.
It added, "Specifically, the Court's written order did not purport to require the return of detainees who had already been removed, and the earlier oral directive was not a binding injunction, especially after the written order."
Boasberg, an appointee of former President Barack Obama, had ordered the administration in mid-March to turn around planes deporting migrants under the AEA — a broad 18th-century wartime authority that Congress has never repealed. Critics say the judge stretched his power by inserting himself into an executive-branch deportation decision.
Despite his directive, the flights continued.
The DOJ said two of the planes were already airborne when Boasberg issued his directive, meaning the removals were effectively completed even though the migrants remained in U.S. custody.
A third flight departed after the order, but the government maintains that everyone on that plane was being processed under standard immigration law — not the AEA — and therefore was not covered by Boasberg's recall.
The migrants were later held for months before being released this summer in a prisoner swap with Venezuela.
"I certainly intend to find out what happened on that day," Boasberg said in a hearing last week.
The DOJ listed five names it said were involved in the process: Noem; Deputy Assistant Attorney General Drew Ensign; Deputy Attorney General Todd Blanche; then-Principal Associate Deputy Attorney General Emil Bove; and DHS Acting General Counsel Joseph Mazzara.
Newsmax Wires contributed to this report.
Mark Swanson ✉
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