Noem made decision to continue deportation flights to El Salvador, justice department says

The Department of Justice said in a statement that Kristi Noem, secretary of the Department of Homeland Security, was the one who made the decision to continue with the deportation flights of Venezuelan immigrants to El Salvador in March, despite a federal judge’s directive that the flights must be returned to the United States.

In a court filing on Tuesday, the justice department said that “Deputy Attorney General Todd Blanche and Principal Associate Deputy Attorney General Emil Bove provided DHS with legal advice regarding the court’s order as to flights that had left the United States before the order issued, through DHS Acting General Counsel Joseph Mazzara” and that “after receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador”.

The DOJ argued that “as explained below, that decision was lawful and was consistent with a reasonable interpretation of the Court’s order”.

The filing came as James Boasberg, a US district judge, recently resumed his inquiry into whether the Trump administration violated his March orders to halt the deportation flights.

That month, the Trump administration had invoked the 18th-century Alien Enemies Act, designed primarily for use in wartime, to deport roughly 250 alleged Venezuelan gang members to El Salvador’s CECOT mega-prison.

Boasberg had quickly issued a temporary restraining order and issued a verbal directive ordering that the deportation flights already in the air be returned to the US.

However, the White House insisted at the time that the detainees were no longer in US territory when the order came down, and claimed that the ruling did not apply and so the planes were not turned around.

In the filing on Tuesday, the justice department maintained that 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 in this court on appeal – why its actions did not violate the court’s order, much less constitute contempt,” the government wrote.

“Specifically, the court’s written order did not purport to require the return of detainees who had already been removed, and the earlier oral directive was not a binding injunction, especially after the written order.”

The White House and DHS did not immediately respond to a request for comment on the new filing.

After spending several months in the notorious El Salvador prison, the Venezuelan nationals were repatriated to Venezuela in July in a deal between the US and Venezuelan governments.