Judge hears arguments over fate of CECOT detainees

A federal judge pressed a Justice Department attorney Wednesday about conflicting statements from the Trump administration regarding the more than 200 alleged Venezuelan gang members that were sent to an El Salvador mega-prison.

U.S. District Judge James Boasberg heard arguments Wednesday about a proposed order to facilitate the return of the migrants from the notorious CECOT prison.

During the hearing, Judge Boasberg brought up President Donald Trump's interview last month with ABC News' Terry Moran in which the president said he could secure the return of wrongly deported Kilmar Abrego Garcia.

"Was the president telling the truth when he said he could pick up the phone and have Mr. Albrego Garcia be released, or not?" Boasberg asked.

"Your Honor, that goes towards the president's belief about the influence that he has," replied DOJ attorney Abishek Kambli.

Judge Boasberg brought up Abrego Garcia during his discussion of "constructive custody," referring to the custody of a person not under the government's physical control. He noted that Trump said he had the power to release Abrego Garcia.

The Trump administration invoked the Alien Enemies Act -- an 18th century wartime authority used to remove noncitizens with little-to-no due process -- to deport more than 200 alleged migrant gang members to CECOT by arguing that the Venezuelan gang Tren de Aragua is a "hybrid criminal state" that is invading the United States.

An official with the U.S. Immigration and Customs Enforcement acknowledged that "many" of the men deported on March 15 lack criminal records in the United States -- but said that "the lack of specific information about each individual actually highlights the risk they pose."

After Judge Boasberg blocked the administration from deporting any noncitizens under the AEA, the U.S. Supreme Court lifted his injunction, allowing the administration to resume deportations as long as detainees are allowed to challenge their removal in the district where they were detained.

The migrants were sent to CECOT as part of a $6 million deal the Trump administration made with Salvadoran President Nayib Bukele for El Salvador to house migrant detainees as part of Trump's immigration crackdown. When asked by Judge Boasberg if the U.S. paid El Salvador to house the migrants, Kambli said that "there is no agreement or arrangement whereby the United States maintains any agency or control over the prisoners."

Kambli added that El Salvador "makes its own sovereign decisions including with respect to detention" and said that the funds provided to the country were grants to be used for law enforcement and "anti crime purposes."

"White House Press Secretary Karoline Levitt said it was approximately $6 million to El Salvador for the detention of these foreign terrorists ... so was she wrong?" Boasberg asked.

When Kambli said again that the U.S. provided grants to El Salvador, Judge Boasberg brought up comments from DHS Secretary Kristi Noem in which she said that CECOT "is one of the tools in our toolkit if you commit crimes against the American people."

"Is she wrong about that?" Boasberg asked.

"'I'm not going to necessarily parse out every statement, and sometimes public statements lack nuance of any given situation," Kambli replied.

When Boasberg noted that the Supreme Court did not decide "one way or another" about the validity of Trump's invocation of the Alien Enemies Act, Kambli conceded that SCOTUS did not "analyze that precise issue."

Judge Boasberg then asked Kambli about the notice that migrants who were sent to CECOT received, saying, "You're not disagreeing that these folks did not get due process before they were transferred?"

"They got some notice ... I'm not sure the precise contours of that, but it wasn't the 12 hours that we were providing at this moment," Kambli said.

"At 8 o'clock at night they could move someone out of criminal custody to ICE custody in Texas or wherever, and that person's gone by 8 a.m.," said Lee Gelernt, an attorney for the ACLU.

Boasberg said he would issue an order regarding constructive custody, and told the DOJ attorney he could file any further declarations from the State Department regarding the issue. He also said the plaintiffs could decide by Monday whether they want discovery.

After resolving the constructive custody issue, Judge Boasberg said he would move on to assessing "whether a violation has occurred."