Judge Grants Class Certification to Men Sent to CECOT and Orders Due Process

Federal District Court Judge James Boasberg granted class certification to 137 of the men renditioned to the CECOT prison in El Salvador on 15 March 2025 against his court order, and gave the government a week to explain how it will facilitate allowing them to conduct court challenges to their removal.

Boasberg’s order begins with a lengthy reprise of part of Franz Kafka’s novel The Trial. Kafka’s protagonist Josef K. detained and prosecuted but cannot find out why or by whom.

Then Boasberg recounts in detail how the government subjected the Venezuelans sent to CECOT to eerily similar treatment.

The ruling goes on to say:

This Court, at a swiftly convened hearing on March 15, ordered the Government not to relinquish custody of the men, but that mandate was ignored. Such defiance is currently the subject of the Court’s contempt inquiry. [citation] Plaintiffs have now amended their Complaint to bring class claims on behalf of those deported to CECOT. In addition, T.C.I. brings separate class claims on behalf of those in U.S. criminal custody who fear future removal under the Alien Enemies Act. Both putative Classes invoke their due-process rights and assert that the Government has violated or will violate those fundamental protections. They also, more expansively, seek class-wide habeas relief on the basis that any detention or removal under the Alien Enemies Act is unlawful. The Court concludes that only one of these claims is likely to succeed on the merits and thus warrants preliminary class-wide relief: the CECOT Plaintiffs’ claim that their summary removal violated their due-process rights.

Indeed, following the March 15 flights, the Supreme Court held — not just once, but twice — that such hurried removals violate the Fifth Amendment’s Due Process Clause. [citation] All nine Justices agreed that due process requires providing potential deportees notice “that they are subject to removal under the Act,” which must be done “within a reasonable time and in such a manner as will allow them to actually seek habeas relief” before being removed. [citation] The reason should be self-evident: the “due process of law” exists so that no “person” within our borders — regardless of citizenship — is deprived of his “liberty” on insufficient evidence or a spurious charge. [citation] In our nation — unlike the one into which K. awakes — the Government’s mere promise that there has been no mistake does not suffice. Any government confident of the legal or evidentiary basis for its actions has nothing to fear from that requirement. It is, after all, “central to our system of ordered liberty.” [citation]

In light of those Supreme Court holdings, this Court ultimately agrees with the CECOT Plaintiffs that they are likely to succeed on the merits of their due-process claim. Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States — a right that need not itself be vindicated through a habeas petition.

[….]

Because the other preliminary-injunction factors also support the CECOT Plaintiffs, the Court concludes that their Class is entitled to preliminary relief. In short, the Government must facilitate the Class’s ability to seek habeas relief to contest their removal under the Act. Exactly what such facilitation must entail will be determined in future proceedings. Although the Court is mindful that such a remedy may implicate sensitive diplomatic or national-security concerns within the exclusive province of the Executive Branch, it also has a constitutional duty to provide a remedy that will “make good the wrong done.” [citation]

Many of the Venezuelans deported using Donald Trump’s invocation of the Alien Enemies Act of 1798 have turned out to have no criminal record and no association with a gang of any kind, contradicting the government’s assertions.

The Supreme Court has stepped into the issues arising from Trump’s mass deportations using that law. SCOTUS decided he can use the wartime law for deportations, but the targeted immigrants must be allowed a chance to pursue a court challenge to their remove. The court temporarily barred deportation of another set of Venezuelans at a detention center in Texas. The court ruled that immigrants detained in Texas under wartime law must be granted “sufficient time and information to reasonably be able to” contact lawyers and file challenges to their deportation.

Boasberg is also in the midst of determining whether to hold federal officials in contempt of court for their violation of his orders to bring back the  15 March deportation flights instead of continuing them to El Salvador.

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