Appeals court appears divided in case over Venezuelan migrants deported to El Salvador prison
Sep 25, 2026, 11:22 AM
WASHINGTON (AP) — A panel of appeals court judges deported from the U.S. to a notorious prison in El Salvador last year.
A three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit didn’t indicate how soon they would rule after hearing arguments from attorneys for the government and the migrants who were flown to El Salvador without any notice or opportunity to challenge their removals from the U.S.
The Justice Department appealed after District Court Chief Judge James Boasberg in February ordered the Trump administration to make arrangements for some of the deported Venezuelan migrants to return to the U.S. at the government’s expense. Boasberg said the administration has essentially told him to “pound sand.”
Two panel members — Judges A. Raymond Randolph and Neomi Rao — appeared to be skeptical that the migrants have a right to return to the U.S. to challenge their March 2025 deportations.
A key question for the panel is whether the U.S. courts have jurisdiction over the migrants’ claims because the U.S. government maintained “constructive custody” of them even after they arrived in El Salvador. Rao questioned whether the migrants can meet that legal burden through their “habeas corpus” petitions.
“There needs to be some showing that the U.S. had that type of control — the control that they could produce a detainee on command — and I don’t see that evidence from petitioners,” said Rao, who was nominated by Republican President Donald Trump.
Circuit Judge Harry Edwards, who was nominated by Democratic President Jimmy Carter, said Boasberg cited plenty of evidence that the Trump administration “retained co-control” over the deported migrants and was “fully engaged and kept itself in a position of control throughout.”
Edwards also said that Supreme Court precedent holds that the plaintiffs have a right to pursue their due process claims.
“Judge Boasberg was merely attempting to facilitate the exercise of their rights. That’s all,” Edwards said.
Justice Department attorney Tiberius Davis argued that Boasberg didn’t have the jurisdiction to issue the order under appeal. Boasberg’s “freewheeling” decision would “open the floodgates to claims that the United States has constructive custody over prisons across the globe,” Davis said.
“This court is not supposed to second-guess sensitive matters of foreign affairs or undermine the United States’ ability to speak with one voice on the international stage. That is exactly what the district court is doing here,” Davis added.
American Civil Liberties Union attorney Lee Gelernt, who represents the deported migrants, said the Trump administration has conceded that it violated the plaintiffs’ constitutional rights but isn’t trying to rectify the problem.
“They concede we rushed them out, gave them no due process,” Gelernt said. “It can’t be the end of the game. That would be such an untenable rule for this court to adopt.”
Randolph noted that the plaintiffs already have been released from custody in El Salvador and taken to Venezuela. He suggested that they already have received the legal remedy to which they are entitled.
“We’re talking about habeas corpus. And (with) habeas corpus, the remedy is release from confinement. They’re already released,” said Randolph, who was nominated by Republican President George H. W. Bush.
“The remedy for this is not release in a country from which they fled. It’s to come back,” Gelernt said.
Randolph also questioned whether the plaintiffs’ underlying case is moot since the migrants are no longer in custody.
ACLU attorneys have been in contact with roughly two-thirds of 137 migrants since their release from the El Salvador mega-prison known as the Terrorism Confinement Center, or CECOT.
Boasberg, who was nominated by Democratic President Barack Obama, has repeatedly clashed with the administration since Trump invoked the 18th-century Alien Enemies Act to deport planeloads of Venezuelan migrants accused of being gang members.
Boasberg gave a verbal order for the aircraft to turn around. The administration denied violating it. Boasberg subsequently started a contempt investigation, leading to a separate appeal for which the full D.C. Circuit will hear arguments next Tuesday.
