Judge Emphatically Insists on His Orders for Government to Rectify Its Violation of Injunction

Federal District Court Judge Brian Murphy emphatically rejected Department of Justice lawyer Drew Ensign’s motion for him to stay his own orders which commanded the government to rectify its violation of his injunction on terms the government itself had chosen.

The core of his 17 page ruling included:

Defendants (members of the Trump administration) have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry. By racing to get six class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order, Defendants gave this Court no choice but to find that they were in violation of the Preliminary Injunction.

Even after finding that violation, however, the Court stayed its hand and did not require Defendants to bring the individuals back to the United States, as requested by Plaintiffs. Instead, the Court accepted Defendants’ own suggestion that they be allowed to keep the individuals out of the country and finish their process abroad. In the interest of full transparency, the Court quotes at length from the hearing transcript:

• JUDGE: [Plaintiffs’ counsel] is suggesting that the only remedy is for the plane to return here so that these individuals be given an opportunity to raise any objections they have to being sent to South Sudan. Do you have another suggestion as to what a remedy that would allow these people to have the process that they are due might be?
• MR. ENSIGN (for the Trump administration): If I may, we think any remedy should be narrowly tailored to the violation. And so, you know, if Your Honor believes they weren’t given a meaningful opportunity to express a fear under CAT [Convention Against Torture], that the remedy should first be limited to giving them such a meaningful opportunity. If they were to do so, then they would be given that reasonable fear interview. But bringing them back would be a much broader remedy than necessary because this Court only requires compliance with procedures and, to the extent that Your Honor believes those procedures were not followed, the Government should be allowed to provide those procedures, and that should satisfy the due process as interpreted by this Court.
• JUDGE: Thank you, Mr. Ensign. So let’s say that — I agree with you that I want to make the most narrowly tailored order to address the violation of my preliminary injunction that is possible. What you’re suggesting is that they can have a reasonable fear interview where they are now. Is that a practical possibility?
• MR. ENSIGN: Your Honor, I don’t know. I’d have to speak to my client, but I think that would need to be at least one of the compliance options that’s presented, because that would be a much more narrowly tailored remedy that is actually tailored to the violation that Your Honor has found.

After this exchange, Defendants spent several hours conferring internally as to the feasibility of this option, ultimately deciding that it was doable:

• JUDGE: I’m very much considering this, but, if this is the route we go, my inclination would be to say, if you want to do all of these [interviews] where they are, you have to do them appropriately; if you don’t want to, you can always bring them home of your own volition and do it there. And so I’m not going to mandate that the Department do anything overseas, but in an effort to craft as circumscribed a remedy as possible, I’m inclined to say if the Department wants to figure that out, I’m inclined to let them.

Since that hearing, merely five days ago, Defendants have changed their tune. It turns out that having immigration proceedings on another continent is harder and more logistically cumbersome than Defendants anticipated. However, the Court never said that Defendants had to convert their foreign military base into an immigration facility; it only left that as an option, again, at Defendants’ request. The other option, of course, has always been to simply return to the status quo of roughly one week ago, or else choose any other location to complete the required process.

It continues to be this Court’s sincere hope that reason can get the better of rhetoric. The orders put in place here are sensible and conservative. Accordingly, and for the reasons stated herein, Defendants’ motions for reconsideration and for stay pending appeal are DENIED.

It cannot be said enough that this is the result Defendants asked for (“I think we certainly agree that any remedy should be narrowly tailored. I don’t know that return to the United States would be required to carry those [interviews] out. You know, I think that those could potentially be conducted abroad.”). This Court sought to fashion a remedy to address the constitutionally inadequate nature of the class members’ removals, while not limiting Defendants’ ability to effectuate those removals in the most expeditious manner possible—subject, of course, to constitutional requirements. In doing so, the Court offered Defendants a method of compliance that both guaranteed the procedural rights due to the class members but was less exacting than having to turn around a chartered plane.

Defendants describe the hardship of having to carry out impromptu immigration proceedings on foreign soil. But that was—and continues to be—Defendants’ daily choice. “To say more would be to paint the lily.”

As a threshold matter, the Court finds this request for a stay perplexing. The order remedying Defendants’ violation of the Preliminary Injunction is as flexible as possible, leaving the details of when, where, and how entirely in Defendants’ hands. It is the narrow remedy Defendants requested. In short, there is very little to stay, absent completely blessing Defendants’ violation.

As to the clarification to the Preliminary Injunction, that addresses a problem raised by Defendants. Defendants ask this Court to reverse its clarification but offer nothing to put in its place. That would do little more than return us to the same spot as before.

The Court further finds that the class members at issue were, and continue to be, at risk of irreparable harm in the absence of injunctive relief. The Court has already outlined the risks faced by class members generally. Here, that risk becomes tangible as class members were nearly dropped off in a war-torn country where the Government states that “[f]oreign nationals have been the victims of rape, sexual assault, armed robberies, and other violent crimes.”

For the foregoing reasons, Defendants’ motions for reconsideration and for stay pending appeal are DENIED.

Murphy said he will address the government’s contempt of court after the people the government attempted to deport to a dangerous third country have gotten due process.

Click here to read Murphy’s latest in court records.