The Justice Department said in a statement that it was Department of Homeland Security Secretary Kristi Noem who made the decision in March to continue deportation flights of Venezuelan migrants to El Salvador, despite a federal judge directing that the flights be returned to the United States.
In a petition filed with the court Tuesday, the Justice Department said that “Deputy Attorney General Todd Blanch and Principal Associate Deputy Attorney General Emile Bowe provided legal advice to DHS, through Acting General Counsel Joseph Mazzara, regarding the Court’s order regarding flights leaving the United States before the order was issued” and “After receiving that legal advice, Secretary Noem directed that AEA detainees, Those who were removed from the United States prior to court order may be transferred to the custody of El Salvador”.
The Justice Department argued that “as explained below, that decision was lawful and consistent with a reasonable interpretation of the Court’s order”.
The filing came as U.S. District Judge James Boasberg recently resumed his investigation into whether the Trump administration violated his March orders halting deportation flights.
That month, the Trump administration invoked the 18th-century Alien Enemies Act to deport about 250 alleged Venezuelan gang members to El Salvador’s Secot mega-prison, which was built primarily for wartime use.
Boasberg immediately issued a temporary restraining order and issued a verbal directive that deportation flights already in the air be returned to the US.
However, the White House stressed at the time that those detained were no longer on US territory after the order was issued, and claimed that the ruling did not apply and so the planes were not returned.
In a filing Tuesday, the Justice Department said the administration did not “violate” Boasberg’s order.
“Although the substance of the legal advice given to DHS and Secretary Noem is privileged, the government has repeatedly explained in its briefs – both to this Court on appeal – why its actions did not violate a court order, much less constitute contempt,” the government wrote.
“In particular, the Court’s written order did not require the return of detainees who had already been removed, and the earlier oral direction was not a binding injunction, especially after the written order.”
The White House and DHS did not immediately respond to requests for comment on the new filing.
The Venezuelan national was deported back to Venezuela under an agreement between the US and Venezuelan governments in July, after spending several months in a notorious El Salvador prison.
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