DOJ argues no judicial jurisdiction outside US airspace in Venezuelan deportation dispute

WASHINGTON (CN) — A federal judge grilled the Justice Department Monday about the Trump administration’s apparent “defiance” of his order that two deportation flights return to the United States mid-flight over the weekend.

Chief U.S. District Judge James Boasberg first heard the case, brought by the American Civil Liberties Union on behalf of five Venezuelan migrants at risk of being deported, at an emergency hearing on Saturday evening.

Boasberg, a Barack Obama appointee, ruled from the bench that the government immediately “turn around and return to the United States” any flights that had left the nation on Saturday. His written order, “memorializing” what he said orally, was docketed less than an hour later.

According to flight tracker site FlightAware, two flights carrying 137 Venezuelan migrants accused of being part of the transnational gang Tren de Aragua, flew from Texas in the middle of Boasberg’s hearing on Saturday.

That figure did not include the five plaintiff migrants, whom Boasberg ordered not be removed on Saturday morning.

Justice Department attorney Abhishek Kambli argued that the government had complied with his order up until it no longer applied to the flights.

“The court lost jurisdiction the moment the planes left U.S. airspace,” Kambli said.

Further, Kambli asserted that in the 38 minutes between Boasberg’s ruling from the bench and his written order, there was effectively no ruling.

The Justice Department first made the argument just before Monday’s hearing, arguing in a six-page motion to vacate that the oral order — which was issued just over an hour after the first two of three flights began — was “not enforceable as an injunction.”

Boasberg was incredulous, noting that while the argument may raise questions that can be addressed through more extensive court proceedings, the theory was not enough to ignore his authority.

“The idea that because my written order was pithier, this ‘turn those planes around’ could be disregarded, is a heck of a stretch,” Boasberg said.

He ordered the Justice Department to file a sworn declaration on Tuesday that would provide further information about the timeline of the flights and the number of people onboard, facts he had hoped to ascertain during Monday’s hearing.

Kambli answered most of Boasberg’s questions by stating that the answer would invoke national security concerns by revealing flight patterns and government operations.

When Boasberg, who served seven years on the U.S. Foreign Intelligence Surveillance Court — the last of which as its presiding judge — asked if Kambli could not answer publicly because the information was classified, Kambli only responded that he could not disclose the information.

Before adjourning, Boasberg said that he would issue a written order instructing the government’s response before noon on Tuesday, “since my oral orders don’t seem to carry much weight,” he joked.

ACLU attorney Lee Gelernt argued that the case, and the administration’s response, was bringing the nation close to a “constitutional crisis.”

In another pre-hearing filing, the Justice Department petitioned the D.C. Circuit Court of Appeals to remove Boasberg from the case, warning that Monday’s hearing would force the government to disclose sensitive national security and operational security concerns.

The Saturday hearing came less than an hour after Trump announced he would invoke the 1798 Alien Enemy Act to deport the Venezuelan migrants.

The statute had only been used three times in the nation’s history, during the War of 1812, World War I and World War II — President Franklin Roosevelt infamously ordered the internment of Japanese Americans under the statute — and has never been used during peacetime.

Trump’s order authorized the immediate removal of the migrants, citing former President Joe Biden’s designation of the group as a foreign terrorist organization, and its alleged “invasion of and predatory incursion into the United States.”

The flights took the migrants to El Salvador, where they were quickly incarcerated in the notorious CECOT facility, where El Salvador President Nayib Bukele has held alleged gang members as part of an aggressive anti-crime strategy.

Bukele seemingly mocked Boasberg’s order in a post on X, formerly Twitter, Sunday morning, stating “Oopsie … Too late.”

The first of three flights left Harlingen, Texas, just 26 minutes after Boasberg opened the hearing at 5 p.m. Saturday, and six minutes after he ordered a recess to allow the Justice Department to confer with the White House. A second flight left at 5:45 p.m., according to FlightAware.

Boasberg issued his oral order barring the deportation flights, and specifically ordering that any still in the air return to the United States, at 6:47 p.m. The written order was docketed at 7:26 p.m.

The third flight left 10 minutes later at 7:36 p.m.

The Justice Department asserted Monday that the third flight carried detainees “removable on grounds other than the proclamation” and was thus irrelevant to Boasberg’s order.

White House Press Secretary Karoline Leavitt said during Monday’s press briefing that Boasberg had “no lawful basis” to dictate the president’s foreign policy and claimed that the planes “took off before the order was entered in the courtroom.”

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