A federal appeals court on Friday examined conflicting arguments over whether the Trump administration unlawfully relocated 137 Venezuelan men to El Salvador’s Zona Rosa prison under the Alien Enemies Act, bypassing legal proceedings and due process protections.
The dispute originated during a March 2025 weekend when U.S. authorities transferred the men to Zona Rosa, a facility associated with the Tren de Aragua gang, despite a temporary restraining order from U.S. District Judge James Boasberg. Advocates argue the government’s actions violated constitutional due process rights, and they now seek individual chances to show they aren’t Tren de Aragua gang members, as ‘flimsy’ evidence alleged.
During oral arguments before the D.C. Circuit Court of Appeals, ACLU attorney Lee Gelernt accused the Department of Justice of creating a legal loophole by claiming remote hearings are impossible because the U.S. lacks jurisdiction over detainees held abroad. The DOJ’s position, he argued, would allow the government to remove individuals to foreign prisons without any opportunity for legal challenge, effectively ending their case.
Judges question U.S. control over detainees
Judge Neomi Rao, a Trump appointee who had previously criticized Boasberg for overreach in a related contempt matter, questioned whether the U.S. maintained sufficient control over the detainees to establish habeas jurisdiction. She noted the record showed “some diplomatic ambiguity about control” and asked whether petitioners could prove the U.S. could “produce a detainee on demand”—a requirement they had not yet satisfied.
Gelernt responded that legal custody, even when shared with Salvadoran authorities, remained adequate. He also challenged the DOJ’s claim that remote hearings would be impractical, citing the agency’s existing policies on such proceedings. “DHS conducts remote hearings regularly,” he stated before pausing to correct himself.
Rao interrupted with a dry observation: “Can’t help yourself.” The exchange highlighted broader divisions among the panel, with judges Harry T. Edwards and A. Raymond Randolph disagreeing over whether Boasberg’s order required the government to facilitate returns or merely grant hearings if detainees reappeared in the U.S.
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Edwards, a Carter appointee, emphasized due process concerns, stating that the core issue was whether detainees were shipped abroad while still holding rights to contest their removal. Gelernt highlighted practical challenges, noting some detainees were in hiding in Venezuela and might never be located. The full court will decide by Tuesday whether to advance Boasberg’s contempt inquiry.
DOJ rejects hearings, declares case closed
The DOJ’s attorney, Tiberius Davis, dismissed remote hearings as “fundamentally unfair,” arguing jurisdiction does not extend to detainees held abroad. His position framed the government’s stance as absolute: “This concludes the matter.”
Boasberg’s initial order had condemned the government’s disregard for his directives, calling the violations an unresolvable predicament. He permitted detainees in third countries or Venezuela to challenge their AEA designations but stopped short of ordering returns for those still in Venezuela, citing diplomatic concerns following the U.S. capture of Nicolás Maduro.
Randolph pressed Gelernt on whether the government’s refusal to repatriate detainees for hearings in Venezuela, where some remained, was legally justified. The ACLU attorney clarified that Boasberg’s order allowed challenges from detainees in Venezuela, provided they could submit documents. “The issue is whether the government can unilaterally block access to justice by refusing repatriation,” he argued. Randolph countered that the order did not mandate forced returns, only that detainees could contest their status if they appeared in the U.S. or a third country. “If they’re not in custody, they’re not before this court,” he stated, framing the dispute as procedural rather than substantive.
ACLU warns of sweeping executive power
Gelernt then broadened the discussion, warning that the DOJ’s interpretation would set a precedent allowing the executive branch to bypass judicial review entirely. “This affects more than 137 men,” he said. “It’s about whether the government can classify someone as an enemy, send them to a foreign prison, and declare no recourse exists.” Rao remained unconvinced, noting the record did not demonstrate the U.S. retained the level of control needed to trigger habeas jurisdiction. “The government didn’t abandon them,” she observed, “but the question is whether that control meets the ‘produce on command’ standard, and currently, petitioners haven’t proven it.”
