Left: U.S. District Judge James Boasberg, chief judge of the U.S. 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 “whisked away” 137 Venezuelan men to a high-security prison for suspected terrorists in El Salvador, without hearings and in defiance of a judge’s temporary restraining order. Now, civil rights advocates argue that those deported under the Alien Enemies Act should receive individual opportunities to prove they are not members of the Tren de Aragua gang, citing what they describe as “flimsy” evidence.
During arguments Friday before the U.S. Court of Appeals for the District of Columbia Circuit, an American Civil Liberties Union attorney forcefully challenged the Justice Department’s claim that courts lack jurisdiction to conduct “remote hearings” in the case, J.G.G. v. Trump.
Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, has extensive experience arguing Alien Enemies Act cases before 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” when he held the administration in criminal contempt for violating 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 investigation, describing it as “an unwarranted judicial intrusion into Executive Branch decisionmaking regarding matters of national security.”
It remains uncertain whether Boasberg’s latest contempt proceedings will continue. The full, or en banc, D.C. Circuit is scheduled to hear arguments on that question as soon as Tuesday.
The current appeal centers on Boasberg’s directive requiring the government to “facilitate the return from third countries” of Alien Enemies Act deportees who want to come back to the United States while their habeas corpus cases move forward.
In issuing the order, Boasberg condemned the government’s “defiance” of his ruling and what he called the “flagrancy” of its due process violations, referring to the situation as a “solution-less mire.”
Boasberg portrayed the Justice Department as “apparently not interested in participating in this process,” saying officials had “essentially told the Court to pound sand.” At the same time, he acknowledged the sensitive foreign-policy circumstances, including the recent U.S. capture of Venezuelan leader Nicolas Maduro, and said he was “treading lightly, as [he] must, in the area of foreign affairs.”
Although Boasberg did not order the government to arrange the return of deportees still in Venezuela, he permitted people held in third countries or Venezuela to submit filings contesting their designation under the Alien Enemies Act and the allegation that they belong to Tren de Aragua.
Against that legal backdrop, Gelernt argued 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 show the United States had exercised “a fair amount of” control over the detainees once they arrived in El Salvador. But she said there was not enough evidence that the U.S. possessed the kind of authority needed to produce a particular detainee on demand in a habeas case.
“It seems that that’s what petitioners need to show,” Rao said, while acknowledging that the record reflected “some diplomatic fudging about control.”
“Diplomacy is like that, right? There’s sensitivities. There are two countries respecting each other’s sovereignty,” Rao continued. Based on existing case law, she said, the challengers appeared to bear the burden of establishing jurisdiction and proving “constructive custody.” That would require evidence that the United States had enough control to produce a detainee “on command,” she said, adding that she did not see such evidence in the petitioners’ filings.
Gelernt countered that the United States unquestionably held “legal custody” of the men. Even if custody were shared with El Salvador, he argued, that level of authority would be sufficient to demonstrate U.S. control and establish habeas jurisdiction.
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At the beginning of the hearing, Justice Department attorney Tiberius Davis rejected the idea of conducting “remote hearings.”
Holding potentially hundreds of hearings remotely in countries around the world would be “completely inequitable,” Davis argued. He maintained that the court would lack jurisdiction and that Boasberg’s order raised numerous practical and legal problems.
“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.
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