April 23 | Stay in the Know with Ryan Goodman on Just Security’s Trump Administration Litigation Tracker

Two overlooked legal defects in the deportations to El Salvador

Welcome to the second installment of the Trump Administration Litigation Tracker Newsletter! I’ll be providing major updates and key takeaways, distilled for busy readers. We are monitoring the status of every case challenging Trump administration executive actions in the Tracker over at justsecurity.org. I will be sharing my own lessons about the litigation here.

A reminder to please subscribe to Just Security’s substack where all our content is free and open for all readers.

I. Litigation snapshot:

In the next newsletter, I will go into some of the details of the litigation landscape including the wins and losses by the administration and plaintiffs. This week is notable in crossing the milestone of over 200 cases since January 20th. The line was crossed in part due to five new lawsuits filed, including by conservative groups, in response to the administration’s tariffs policies.

II. My key takeaways for today: Two (More) Potentially Fatal Flaws in Deportations to El Salvador

In the extensive public discussion of the Trump administration’s transferring people to El Salvador’s CECOT prison, two legal problems have been widely overlooked: (1) constitutional constraints related to the use of CECOT as a form of punishment; and (2) statutory constraints related to torture at CECOT.

These two legal issues could strike a fatal blow to both forms of transfers - those under the purported authority of the Alien Enemies Act (alleged Venezuelan gang members) and those under the purported authority of the Immigration and Naturalization Act (as in the case of Kilmar Abrego Garcia).

These legal issues, however, have not been lost on immigration lawyers working on the frontlines. Indeed, I’d like to bring to your attention two lawsuits, which have themselves flown largely under the radar.

To be clear, the two issues that I am highlighting concern the government’s authority to deport particular classes of migrants to a specific location. Let’s bracket whether the government has every right to deport certain individuals. The two legal issues instead simply and squarely concern the government’s authority to send people to CECOT.

1. CECOT as Punishment. Zacarias Matos v. Venegas (Southern District of Texas)

Basic to constitutional law is that the government cannot impose incarceration as a form of punishment without criminal charges, criminal trials, and all the accompanying due process guarantees. In the case of Zacarias Matos v. Venegas, the plaintiff argues that the Trump administration’s use of CECOT is clearly a form of punishment.

The plaintiff makes a strong, if not completely obvious, claim: the nature of the supermax prison and senior executive branch senior officials’ statements of the purposes of incarcerating people at CECOT satisfy the Court’s test of whether the conditions constitute punishment. The factors for what is considered punishment in this context have been announced and reaffirmed by the U.S. Supreme Court time and again. You can probably anticipate where that then leads in terms of its legal implications, because none of the individuals sent to CECOT have received anything close to Fifth and Sixth Amendment protections.

For more on this argument, I recommend reading Ahilan Arulanantham’s essay in Just Security this morning: “Deportation to CECOT: The Constitutional Prohibition on Punishment Without Charge or Trial.” (Disclaimer: Ahilan is Zacarias Matos’s lawyer). I am also grateful to Asha Rangappa who raised this issue and helped me think through it.

The legal brief that Ahilan discusses was filed on behalf of Zacarias Matos on April 14. On Monday night of this week (Apr. 21), the government filed a response and conspicuously avoided addressing this particular legal argument.

Of course, the Fifth and Sixth Amendment do not exhaust the Bill of Rights protections that apply if the government’s actions are understood as punishment through incarceration. The Eighth Amendment prohibition on cruel and unusual treatment is also of relevance. So is the Fourth Amendment. I asked my colleague Andrew Weissmann who teaches a course on the Fourth Amendment. He wrote, “For a seizure of a person in a criminal context the state must have probable cause and, importantly, there must be a judicial determination within 48 hours that such probable cause for the seizure exists. County of Riverside v McLoughlin.”

2. CECOT as Torture and Potential Death. D.V.D. v. U.S. Department of Homeland Security (District of Massachusetts)

This case involves a class action lawsuit on behalf of immigrants being deported to a third country (not their country of origin) after they have received a final order of removal (i.e. exhausted all administrative remedies). It is not specific to El Salvador or CECOT, but has obvious implications for those operations.

The plaintiffs insist on the constitutional right to notice, recently recognized by the Supreme Court, which includes government agents not lying to them (incredible that I have to write that) as to which country they are being sent. They also assert their statutory right to make an application to an immigration court if they risk grave danger such as torture in being sent to that third country.

How might this apply to the CECOT deportations?

Affidavits across different cases have provided evidence that ICE agents have falsely told Venezuelan nationals boarded onto buses and planes that they are being sent home to Venezuela, when their true fate is El Salvador’s CECOT prison. This deception reportedly recurred during the government’s most recent effort – the Easter Weekend attempt to use the Alien Enemies Act to deport people to El Salvador, before the operation was halted by the Supreme Court in a 1am ruling. In addition to such deception, in its Supreme Court brief filed on Monday, the ACLU states: “Nor, critically, did the notice tell individuals that although they are Venezuelan, they may be removed to El Salvador.”

Even if individuals were correctly told they were being sent to El Salvador, they must be given an opportunity to apply to an immigration court under a federal statute that prohibits the U.S. government from sending them to a country where they’re at personal risk of being tortured. Indeed, in D.V.D., Judge Brian Murphy issued a temporary restraining order along those lines, which was upheld by the First Circuit (due to an jurisdictional infirmity in the government’s appeal of a TRO).

On Friday, Judge Murphy issued a more long-lasting preliminary injunction. His opening paragraph describing the nature of the dispute is extraordinarily powerful and appears to be written for a broader audience far beyond the courtroom. I recommend reading the judge’s words in full:

“This case presents a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there? Defendants argue that the United States may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation. All nine sitting justices of the Supreme Court of the United States, the Assistant Solicitor General of the United States, Congress, common sense, basic decency, and this Court all disagree. Plaintiffs are seeking a limited and measured remedy—one Defendants have conceded in other proceedings is the minimum that comports with due process. Plaintiffs are simply asking to be told they are going to be deported to a new country before they are taken to such a country, and be given an opportunity to explain why such a deportation will likely result in their persecution, torture, and/or death. This small modicum of process is mandated by the Constitution of the United States…”

Yesterday, the government appealed to the First Circuit to try to overcome Judge Murphy’s ruling.

Finally, it’s important to see how this second legal issue of protection from torture cuts across many cases of deportation, including the first two “Alien Enemies Act” flights on March 15, the “third plane” sent to El Salvador which the government asserted to Chief Judge Boasberg carried only immigrants with final orders of removal, the fourth flight Secretary Rubio boasted about at the end of last month, and the fifth flight Rubio revealed a few days ago. It is hard to imagine how the individuals the government tried to hurriedly move out of the country through subsequent flights over Easter Weekend were not protected by these same legal guarantees. If they were subject to final orders of removal, deporting them may have run afoul of Judge Murphy’s order.

III. What I’m reading, watching, and listening to:

The Alien Enemies Act : Throughline : NPR The latest episode published by NPR’s history podcast, Throughline.

Ankush Khardori, ‘An Enormous Usurpation’: Inside the Case Against Trump’s Tariffs, Politico Magazine

IV. From the mailbox:

I’ll be answering readers’ questions. Email me any questions on your mind about the ongoing litigation, and I’ll pick a few each week to respond to in this newsletter. (And, once again, if you don’t mind my mentioning your name in a future newsletter please say so in your email, otherwise I’ll consider any comments anonymous.)

Make sure you check the Litigation Tracker at justsecurity.org regularly for updates and let us know if we’re missing anything.

Thank you for being part of the Just Security community,

Ryan