Lawyers for the Venezuelan men who were sent to a notorious prison in El Salvador last year argued in court Monday that due process for their clients would mean giving them the immediate right to return to the U.S. for a court hearing, or have remote hearings about their cases.
The men, who were detained by federal immigration authorities, were held for four months in the Terrorism Confinement Center, or CECOT, aSalvadoran megaprisonknown for its harsh conditions. They were sent back to Venezuela in July as part of a prisoner swap between the two nations, andhave said they suffered physical and psychological abuse while imprisoned in CECOT.
In December, a federal judge ruled the Trump administration should not have sent the 137 Venezuelan men to CECOT after invoking the Alien Enemies Act, finding that the men were denied due process.
U.S. District Judge James Boasberg ordered the federal government to either facilitate the return of the men to the United States or otherwise follow due process and provide them with hearings. The men are now living in Venezuela or in nearby countries.
Lee Gelernt, a lawyer with the American Civil Liberties Union who is representing the plaintiffs in this case, argued Monday that his clients who have made it out of Venezuela and to a third country should have the immediate right to either return to the U.S. for a hearing, have a remote hearing, or at the very least be able to file habeas claims on paper.
For those still in Venezuela, a paper filing is probably the best place to start given the turmoil in the South American country, the lawyer said.
Boasberg asked Department of Justice attorney Tiberius Davis why the 137 men shouldn't be treated the same asKilmar Abrego Garciaand returned to the U.S., especially because the Supreme Court previously ordered Abrego returned to the same condition he was in before he was mistakenly deported.
"Obviously, if the court ordered that, we could do that," Davis said. He said trying to coordinate remote hearings, for legal, jurisdictional, and practical reasons, would be the "worst" option.
Davis said the Trump administration would prefer if any of the 137 individuals arrived at a U.S. port of entry or had boarding letters, saying "that is the least problematic" pathway here.
Gelernt and Davis both agreed that these individuals, if they were to present themselves at a port of entry, would not be allowed into the U.S. freely. They would be taken into U.S. custody and their individual immigration proceedings would continue from there, Davis said.
Boasberg said he would rule on how the government is to proceed within the next week or so.
The men were sent to CECOT in March after Trumpinvoked the Alien Enemies Act, a wartime law,declaring the Venezuelan gangTren de Aragua an invading force.Their removal to El Salvador cameeven as Boasberg, in a ruling at the time,blocked the deportations and ordered any flights carrying migrants subject to the presidential invocation to return to the United States.
Trump said heinvoked the Alien Enemies Actto target members of the gang, which the administration deems a foreign terrorist organization and accuses of engaging in "mass illegal migration to the United States to further its objectives of harming United States citizens." By invoking the law, Trump was able to swiftly detain and remove immigrants he claimed were members of the gang at the time.
The men who spoke to NBC News,as well as the families of former detainees and their attorneys,strongly denied any ties to gangs and said they were unfairly targeted because oftattoos that may be popular in Venezuela and are unrelated to Tren de Aragua.
A New York Times investigation, which relied on interviews with prosecutors and law enforcement officials as well as court documents and media reports in multiple countries, found that most of the men sent to CECOT did not have criminal records in the United States or in the region. It found at least 32 of the more than 200 men sent to CECOT, including the 137 under the Alien Enemies Act, faced serious criminal accusations or convictions in the United States or abroad. Very few of them appeared to have any documented evidence connecting them to Tren de Aragua.
Three of the Venezuelan men told NBC Newsafter their release from CECOT and return to Venezuela that they experienced physical and psychological torture, including one man's allegation that he was sexually assaulted at the prison.
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