DC Circuit Judges Split Over Order to Return Venezuelan Migrants Deported to El Salvador

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit appeared divided on Friday over whether to block or uphold an order requiring the Trump administration to facilitate the return of dozens of Venezuelan migrants deported to a notorious El Salvador prison last year. The judges did not signal when they would rule.

The case stems from the March 2025 removal of the migrants, who were flown to El Salvador without notice or any opportunity to challenge their deportations. In February, District Court Chief Judge James Boasberg ordered the administration to arrange for some of them to return to the United States at government expense. The Justice Department appealed after Boasberg said the administration effectively told him to "pound sand."

Judges A. Raymond Randolph and Neomi Rao, both Republican nominees, appeared skeptical that the migrants have a right to return to the U.S. to contest their removals. A central question is whether U.S. courts have jurisdiction over the claims because the government maintained "constructive custody" of the migrants even after they reached El Salvador. Rao questioned whether the migrants could meet that legal burden through their habeas corpus petitions, saying she saw no evidence that the U.S. could "produce a detainee on command."

Circuit Judge Harry Edwards, a Jimmy Carter nominee, countered that Boasberg cited ample evidence the administration "retained co-control" over the deported migrants and remained "fully engaged and kept itself in a position of control throughout." He added that Supreme Court precedent supports the plaintiffs' right to pursue due process claims, and that Boasberg "was merely attempting to facilitate the exercise of their rights."

Justice Department attorney Tiberius Davis argued Boasberg lacked jurisdiction to issue the order under appeal, calling the decision "freewheeling" and warning it would "open the floodgates to claims that the United States has constructive custody over prisons across the globe." He said courts should not "second-guess sensitive matters of foreign affairs" or undermine the government's ability to speak with one voice internationally.

ACLU attorney Lee Gelernt, representing the deported migrants, said the administration has conceded it violated the plaintiffs' constitutional rights by denying them due process but has not tried to remedy the problem. "They concede we rushed them out, gave them no due process," he said. "It can't be the end of the game."

Randolph noted the plaintiffs have already been released from custody in El Salvador and taken to Venezuela, suggesting they had received the only remedy habeas corpus affords. Gelernt responded that the proper remedy is not release in a country from which they fled, but return to the United States. Randolph also questioned whether the underlying case is moot now that the migrants are no longer in custody.

ACLU attorneys have been in contact with roughly two-thirds of the 137 migrants since their release from the El Salvador mega-prison known as the Terrorism Confinement Center, or CECOT.

Boasberg, a Barack Obama nominee, has repeatedly clashed with the administration since Trump invoked the 18th-century Alien Enemies Act to deport planeloads of Venezuelan migrants accused of being gang members. Boasberg issued a verbal order for the aircraft to turn around; the administration denied violating it. He subsequently opened a contempt investigation, leading to a separate appeal that the full D.C. Circuit will hear next Tuesday.