Left: U.S. District Judge James Boasberg, chief judge of the United States District Court for the District of Columbia, poses for a portrait at the E. Barrett Prettyman Federal Courthouse in Washington on March 16, 2023 (Carolyn Van Houten/The Washington Post via AP, File). Right: Neomi Rao, President Donald Trump’s nominee for the D.C. Circuit Court of Appeals, appears before the Senate Judiciary Committee during her confirmation hearing on Capitol Hill in Washington on Feb. 5, 2019 (AP Photo/J. Scott Applewhite).
In March 2025, the Trump administration sent 137 Venezuelan men to a maximum-security prison for suspected terrorists in El Salvador without court hearings and despite a judge’s restraining order. Now, advocates argue that those deported under the Alien Enemies Act (AEA) deserve individual opportunities to prove they are not members of the Tren de Aragua gang, relying on what they describe as “flimsy” evidence.
An American Civil Liberties Union attorney made that case forcefully Friday morning before the U.S. Court of Appeals for the District of Columbia Circuit. He also sharply challenged the Justice Department’s claim that “remote hearings” are impossible because the court lacks jurisdiction in the case known as J.G.G. v. Trump.
Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, has extensive experience arguing AEA challenges in federal appeals courts. This time, however, he faced questions from U.S. Circuit Judge Neomi Rao.
Rao, appointed by Donald Trump, was part of a panel that last year accused Chief U.S. District Judge James Boasberg of a “clear abuse of discretion” for holding the administration in criminal contempt over its violation of a March 15, 2025, temporary restraining order. The U.S. Supreme Court later vacated that order.
In April, Rao again criticized Boasberg after he revived the contempt inquiry, describing it as an “unwarranted judicial intrusion into Executive Branch decisionmaking regarding matters of national security.”
It remains uncertain whether Boasberg’s latest contempt proceeding will continue. The full D.C. Circuit, sitting en banc, is scheduled to hear arguments on the issue as soon as Tuesday.
The current appeal centers on Boasberg’s directive requiring the government to “facilitate the return from third countries” of AEA deportees who “desire” to come back to the United States while their habeas cases move forward.
Boasberg condemned what he called the government’s “defiance” of his order and the “flagrancy” of its due process violations, describing the resulting situation as a “solution-less mire.”
The judge portrayed the Justice Department as “apparently not interested in participating in this process” and as having “essentially told the Court to pound sand.” He issued the order while mindful of the recent U.S. capture of Venezuelan leader Nicolas Maduro, saying he was “treading lightly, as [he] must, in the area of foreign affairs.”
Boasberg stopped short of ordering the government to arrange the return of deportees still in Venezuela. He did, however, permit people held in third countries or Venezuela to submit filings contesting their AEA designations and the allegations that they belong to Tren de Aragua.
Against that backdrop, Gelernt told the appeals court that the government was seeking “an extraordinary rule” that could create a “disturbing loophole.”
“What they are saying is, they can send essentially whisk people away to a foreign prison, give them no opportunity to contest the removal,” Gelernt said, “and then say because we got them out of the country into a foreign prison, that’s the end of the matter.”
“This is a path to perfect lawlessness and one that courts cannot condone,” he added.
Rao responded that the record appeared to contain “a fair amount of evidence that the U.S. had had some control over these detainees at a minimum” after they arrived in El Salvador. But she said there was no clear evidence that the United States exercised enough authority to produce a particular detainee “on command” for a habeas proceeding.
“It seems that that’s what petitioners need to show,” Rao said, while acknowledging that the record “shows that there’s some diplomatic fudging about control.”
“Diplomacy is like that, right? There’s sensitivities. There are two countries respecting each other’s sovereignty, so it seems to me from the case law, petitioners have the burden to demonstrate jurisdiction,” Rao continued. “So they have the burden to demonstrate there’s constructive custody, and so there needs to be some showing that the U.S. had that type of control, the control that they could produce, you know, a detainee on command, and I don’t see that evidence from petitioners.”
Gelernt countered that the United States “certainly had legal custody” of the men. Even if custody was shared, he argued, that would be sufficient to show U.S. control over detainees held abroad and establish habeas jurisdiction.
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At the beginning of the hearing, Justice Department attorney Tiberius Davis argued that remote hearings were not a viable option.
“There are a lot of questions here that make having to do a potential hundreds of over 100 remote hearings in countries across the world would be completely inequitable,” Davis said. “There would be no jurisdiction. I think there would be a lot of problems with what [Boasberg] ordered.”
“That’s just the end of this case,” Davis asserted on the jurisdictional question.
In his exchanges with Rao, Gelernt cited that as an example of the government intransigence he’s up against.
“Everything the district court suggested, the government balked at. I mean, remote hearings. DHS has a specific policy about doing remote hearings. They do it all the time,” he said, mentioning the en banc contempt proceeding to come.
Catching himself for a moment, the attorney said, “I don’t want to inject that. I’ll put that aside.”
“That’s certainly within your right to do,” Rao said. “But we first have to figure out because we’re an Article III court whether we have jurisdiction.”
That’s when Gelernt pounced.
“So that’s what I’m saying. It goes to the due process. Put aside that they lied to Judge Boasberg Saturday morning and all that,” he said.
“Can’t help yourself,” Rao interjected, with a chuckle.
“They’ve already admitted that, but I don’t, I don’t want to get into — sorry, Judge Rao. I apologize,” the lawyer said.
While Senior U.S. Circuit Judge Harry T. Edwards, a Jimmy Carter appointee, appeared to warm to the petitioners’ case, Senior U.S. Circuit Judge A. Raymond Randolph, a George H.W. Bush appointee, interpreted Boasberg’s ruling as ordering detainees “free in Venezuela” back into custody.
“They’re not in custody now, and if the government or if they any one of these individuals decides to show up at the border, they will be in custody, and that’s the remedy,” Randolph stated.
Edwards said the remedy would instead be to “get a hearing as to whether it was a violation of due process.”
“It’s the due process question, and whether or not he was shipped out when you had rights to exercise, and the government denied you the opportunity to do that,” Edwards added.
“That’s right, Judge Edwards,” Gelernt said, detailing that some deportees “are in hiding” in Venezuela.
“There are some we can’t find because they’re in hiding in Venezuela. I think we will find them eventually, but it’s not as if they’re released and they’re walking around the streets, you know, in a free country,” the ACLU attorney said.
The post Judge interjects ‘you can’t help yourself’ as lawyer snaps that DOJ ‘lied’ to judge and should at least provide ‘remote hearings’ in AEA case first appeared on Law & Crime.
