A dramatic mid-hearing discovery that federal officials had begun to deport the plaintiff in a major immigration lawsuit deportation in defiance of a court-approved agreement to keep her stateside during the case prompted a judge to threaten Attorney General Jeff Sessions with contempt charges Thursday.
Department of Justice (DOJ) attorneys had agreed not to deport the woman, identified in court papers by the pseudonym Carmen, until at least midnight Thursday. But American Civil Liberties Union (ACLU) attorneys arguing for Carmen and the other plaintiffs in the case learned that Carmen and her young daughter had been moved out of the Texas detention facility where they were being held as the lawyers stood before Judge Emmet Sullivan in Washington, D.C.
Tweets from the ACLU suggested that Carmen and her daughter were already aboard a plane and midair when Sullivan learned of the government’s deceit. The Washington Post’s report on the matter says they “were headed to the airport in San Antonio for an 8:15 a.m. flight” when the ACLU first found out, but also relays the ACLU’s claim that DOJ lawyers confirmed they had been aboard a flight to El Salvador and pledged “they would be flown back to Texas.” Sessions’ team told Sullivan by email later that they had indeed been midair at the time, though his order in the matter does not specify their location.
“Upon learning in open Court that ‘Carmen’ and her daughter had been removed from their place of detention and could be in the process of being removed from the country, the Court issued an oral Order requiring the Defendants to return ‘Carmen’ and her daughter to the United States FORTHWITH,” Sullivan wrote. If that doesn’t happen, he wrote, then Sessions, Homeland Security head Kirstjen Nielsen, and other senior Trump administration officials “shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT.”
The difference between where exactly the two were at the time — inside the country where the executive power being used to move them is supposed to be checked by the judiciary powers of people like Sullivan, or outside of it — would be significant in determining whether or not the feds violated an agreement made in court before that court had actually decided the matter in question.
Either way, the news prompted Sullivan to fulminations unusual for a federal judge.
“[S]omeone seeking justice in U.S. court is spirited away while her attorneys are arguing for justice for her?” Sullivan said, according to the Post. “This is not acceptable.”
The judge threatened to levy contempt-of-court charges against Sessions himself if the feds continued to play hide-the-plaintiff in the case, the paper reported, and ordered the feds to “turn the plane around.”
Carmen and her fellow plaintiffs are seeking to overturn an unprecedented move Sessions made personally back in June. Rather than allow the Board of Immigration Appeals to determine whether or not victims of gang and domestic violence in countries whose governments are indifferent to such crimes are eligible for asylum in the United States, Sessions directed a case called Matter of A–B– to his own desk. Then, he tore up the promise of asylum for what he called “private crime” victims.
Other federal officials tasked with interviewing asylum-seekers at the border and making initial determinations to either immediately deport seekers or allow them to stay pending investigations took up Sessions’ brand-new logic almost immediately. For the time being, the pathway to asylum has dramatically shrunk — especially for Latinx people subject to chronic abuse from their intimate partners in countries where police simply ignore such cases.
The ACLU suit on behalf of Carmen and a half-dozen other similarly situated asylum-seekers hopes to restore the old, pre-June order. But in many ways Sessions’ power is near-absolute on such matters. Immigration judges work directly for him, despite the implication in their titles that they are Sullivan’s colleagues in a constitutionally independent branch of government.
The actual courts system is the only real check on Sessions and President Donald Trump’s quest to turn the deportation system into a high-speed assembly line capable of removing huge masses of people quickly and without the consideration that’s typified immigration policy in “The Land of the Free” for generations. And though the mix of reports Thursday indicate that Carmen had not been taken across the border in direct violation of the agreement DOJ officials made, Sullivan’s explosion on the bench at the news that they were moving her toward a hangar before he’d even finished hearing arguments in her case suggests that the duel over Trump’s MAGA agenda still hasn’t reached its full fever pitch.