DHS Caught Violating Court Ban On Foreign Gulag Renditions. Again.

And submitting false affidavits.

Editorial credit: Antwon McMullen / Shutterstock.com

On April 18, Judge Brian Murphy of the US District Court of Massachusetts issued a preliminary injunction:

This case presents a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there? Defendants argue that the United States may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation. All nine sitting justices of the Supreme Court of the United States, the Assistant Solicitor General of the United States, Congress, common sense, basic decency, and this Court all disagree.

To feed Trump's deportation machine, the US government demands the right to summarily dump human beings into foreign gulags in countries they’ve never set foot in. According to The Intercept, it’s not just El Salvador agreeing to accept renditioned immigrants from the US. The administration has explored or entered deals with the governments of Angola, Benin, Costa Rica, Eswatini, Equatorial Guinea, Guatemala, Guyana, Honduras, Kosovo, Libya, Mexico, Moldova, Mongolia, Panama, Rwanda, Saudi Arabia, Ukraine, and Uzbekistan.

And so, in its zeal to shove as many manacled human beings onto planes as fast as possible, the Department of Homeland Security repeatedly violated Judge Murphy’s order to provide potential deportees to a third country with written notice, in a language they understand, with a copy to their counsel, and providing “meaningful opportunity, and a minimum of 15 days” to challenge said deportation under the Convention Against Torture (CAT). Yesterday, at a hearing that lasted several hours, Judge Murphy attempted to untangle several of those violations.

Defense Department, Who?

The government's go-to response is to play dumb every time it gets caught violating the law. Two weeks ago, in response to news reports that the government was about to summarily deport Asian immigrants to Libya, Judge Murphy wrote “If there is any doubt—the Court sees none—the allegedly imminent removals, as reported by news agencies and as Plaintiffs seek to corroborate with class-member accounts and public information, would clearly violate this Court’s Order.”

Before that, the government tried handing immigrants over to the Defense Department and having it rendition them to third countries through the US base at Guantanamo Bay. It reasoned that these deportations were accomplished “by the Department of Defense on a flight with no DHS personnel onboard,” and, because “the Department of Defense is not a defendant in this action,” it was totally fine.

Judge Murphy clarified his order again, adding that ”after taking custody of an alien, Defendants may not cede custody or control in any manner that prevents an alien from receiving the due-process guarantees outlined in the April 18, 2025 preliminary injunction.”

At yesterday’s hearing, the plaintiffs pointed out that there is no universe in which DHS coincidentally left those detainees on the tarmac at where DOD was waiting to whisk them away beyond the court’s reach. While the parties engage in discovery as to how such a thing could have happened, the plaintiffs will now have to amend their complaint to join the Department of Defense as a defendant. (We all know how it happened.)

Refoulement Most Foul

Also on yesterday’s agenda was DHS’s renditions of Asian nationals to the war torn country of South Sudan, which Judge Murphy called “unquestionably violative of this court’s order.”

Piecing together news reports and the plaintiffs’ emergency motion, it appears that eight immigrants, including two Cubans, two men from Myanmar, one Laotian, one Mexican, one Vietnamese citizen, and one South Sudanese national, were told Monday night that they were being deported to South Sudan in the morning. In fact, the original notice said “South Africa” — which is darkly funny, and also indicates the level of care taken by ICE and DHS throughout this process. The men were flown from Texas to Djibouti, where they are apparently still on the plane chartered by ICE to deport them.

“Are you telling me that the Department believes that these individuals had a meaningful opportunity to object, in a locked cell, not during business hours, when they couldn't have called their attorneys if they wanted to,” Judge Murphy asked incredulously?

The DOJ, which was represented here by a whole crew of lawyers, including the execrable Drew Ensign, insisted that the men could have just told ICE that they feared torture if deported to South Sudan, a country which did not exist until 2011 and about which the US State Department warns “Do not travel to South Sudan due to crime, kidnapping, and armed conflict.”

Just before yesterday’s hearing, DHS spokesliar Tricia McLaughlin convened a press conference to call the deported men “monsters.” And perhaps they are criminals, although Trump’s goons already defamed Kilmar Abrego Garcia by falsely claiming he was a sex trafficker and lied their faces off about the men deported to CECOT in El Salvador, so … big grain of salt there. In any event, these men’s criminal history is irrelevant as to whether the government violated the court’s order. They were entitled to notice, and they didn’t get it.

Worse still, South Sudan’s police spokesperson, Major General James Monday Enoka, told the AP that any US deportees would be swiftly “redeported to their correct country” if they were not South Sudanese nationals. Refoulement is the forcible return of refugees or asylum seekers to a country where they will be subject to persecution, and it’s a violation of international law. ICE head Todd Lyons, who said he hopes to run the agency “like [Amazon] Prime, but with human beings,” claims that these men hail from countries that refuse to take them back. That sounds specious — certainly Mexico and Vietnam will accept their own nationals. It seems much more likely that at least some of these deportees had orders withholding removal because they expressed credible fear of harm if returned to their countries of origin. And if South Sudan is simply going to send them there anyway, than the US will have accomplished via chain refoulement what it could not legally accomplish directly.

“No reasonable interpretation of the Court’s Preliminary Injunction could endorse yesterday’s events,” Judge Murphy wrote in an order after the hearing, adding that, while “the finer points of what is required under the Due Process Clause” may sometimes prove challenging, “this is not one of those hard cases.” He imposed a ten-day period between notice of third-country removal and deportation, and cautioned that “no Defendant may avoid their duty to follow the Preliminary Injunction by involving or ceding responsibility to any other person.” He also ordered the government to submit a sworn declaration by tomorrow addressing Enoka’s statement.

As for the detainees, who are apparently still on the plane in Djibouti, the court ordered that they be given reasonable fear interviews with the same access to counsel and time to assemble their case as they would if they were here in the US.

After Ensign got through whining about the safety of the poor ICE agents accompanying these terrifying prisoners, he suggested that they could conduct their credible fear interviews from inside the plane on the tarmac in Djibouti. Presumably he had in mind a perfunctory interview, taking no more than a couple of hours. This is apparently not what Judge Murphy has in mind, though:

DHS, in its discretion, may elect to provide this process to the six individuals either within the United States—should it choose to return them to the United States—or abroad, if at all relevant times DHS retains custody and control over the individuals in conditions commensurate to those the individuals would be housed in were they still in DHS’s custody within the United States.

We’ll have to wait and see if the government insists on stashing these people overseas for the next three weeks simply to ensure that they never touch American soil again.

The Disappearing Witness

The last part of the hearing was taken up with the case of pseudonymous plaintiff O.C.G.

On February 19th, an immigration judge issued O.C.G. an order of withholding to his native Guatemala, where he fears persecution because he is gay. At that hearing, he described being kidnapped and raped in Mexico en route to the US. Two days later, without notice, he was summarily deported to Mexico.

The government claims this is fine because O.C.G. was supposedly asked by an ICE agent on February 21 if he was afraid of being deported to Mexico and responded in the negative. The government repeatedly referenced this claim, including in its appeal to the First Circuit. But — hey, wouldn’t ya know! — two days before the plaintiffs’ counsel was supposed to depose this agent, the government announced that the agent never existed. Their explanation is that a software glitch checked a box that led the government to hallucinate under oath about this conversation where O.C.G. cheerfully agreed to be deported to Mexico.

In court, the parties argued about subpoenaing the metadata to figure out just how this happened, but the court has not yet ruled on the matter. (Again, we all know how this happened.)

In his last order of the night, Judge Murphy warned the government, including DHS and the DOJ, that it cannot escape liability for “potential criminal contempt of court” by allowing underlings or other federal agencies to violate the injunction for them:

Defendants must submit by 5:00 p.m. on May 28, 2025, under the pains and penalties of perjury, a declaration from an attorney of record in this case that certifies: (1) that notice of the clarified preliminary injunction has been provided to all persons involved in the removal process; and (2) that all individuals potentially involved in any removal that may implicate this order have been told that failure to comply with the terms of the preliminary injunction may subject them to civil or criminal contempt.

The penalty for such contempt was left for another day.