U.S. President Donald Trump speaks to the media during a guided tour of the John F. Kennedy Center for the Performing Arts before leading a board meeting on March 17, 2025 in Washington, DC.
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The Department of Justice on Monday asked a federal appeals court in Washington, D.C., to replace the district court judge overseeing a case challenging the Trump administration’s deportations of hundreds of alleged Venezuelan gang members to El Salvador under the wartime Alien Enemies Act.
The request, which cited Chief James Boasberg’s alleged “inappropriate exercise of jurisdiction,” came as Boasberg conducted a hearing where he pressed a top-ranking DOJ lawyer about the circumstances of the deportations conducted over the weekend.
The DOJ earlier Monday asked Boasberg without success to cancel that hearing.
Boasberg in an oral order on Saturday had told the DOJ to order the return of any deportees who were still airborne on flights that originated in the United States.
The DOJ in a court filing claimed that “an oral directive is not enforceable at a directive,” and said that it had complied with Boasberg’s written order issued hours later blocking any more deportation flights of Venezuelans.
Deputy Associate Attorney General Abhishek Kambli told Boasberg on Monday that he was not at liberty to talk about details of the controversial deportation flights in a public setting in U.S. District Court in Washington.
At the same hearing, a lawyer for five Venezuelan men who sued to challenge their feared deportations told Boasberg that he wanted to be careful about his language, but said, “There has been a lot of talk the last couple of weeks about a constitutional crisis.”
“I think we’re getting very close to that,” said Gelernt, who argues that two deportation flights took off from the United States after Boasberg’s oral order.
Gelernt appeared to be referring to Kambli’s refusal to answer questions by the judge about the flights, and to the Trump administration’s argument that the deportations under the Alien Enemies Act were not subject to judicial order after the flights left U.S. airspace.
“It doesn’t matter if you’re in U.S. airspace or not,” Boasberg said during Monday’s hearing.
Kambline replied, saying, “When the planes are in the sky and it’s a matter of national security,” before being cut off by the judge, who asked why the planes were not turned around.
Boasberg suggested that the DOJ’s position was “we don’t care, we”ll do what we want.”
Boasberg asked if President Donald Trump has “extra” powers when a plane crosses international water.
“I think my equitable powers are pretty clear” and don’t end at the edge of the continent, Boasberg said.
He also called the DOJ’s argument that the airborne planes could not be turned around when his order was issued “a heck of a stretch.”
The judge said he would issue a written order later detailing answers he wanted the DOJ to give him by midday Tuesday “since apparently, my oral orders don’t appear to carry much weight.”
In that order, Boasberg said, “The Government shall file a Notice, which may, if necessary, be sealed in part, setting forth: 1) A sworn declaration that no one on any flight departing the United States after 7:25 p.m. on March 15, 2025, was removed solely on the basis of the Proclamation at issue; 2) A sworn declaration setting forth when the Proclamation at issue was signed, when it was made public, and when it went into effect; 3) The Government’s best estimate of the number of individuals subject to the Proclamation currently remaining in the United States and how many are currently in U.S. custody; and 4) The Government’s position on whether, and in what form, it will provide answers to the Court’s questions regarding the particulars of the flights.”
“If the Government takes the position that it will not provide that information to the Court under any circumstances, it must support such position, including with classified authorities if necessary,”
the order said.
The DOJ, in its letter earlier Monday to the Circuit Court of Appeals for the District of Columbia, objected to Boasberg continuing to preside over the case, saying he was holding a public hearing “to address operational details regarding flights that removed aliens identified as associated with a designated foreign terrorist organization.”
“That development escalates the stakes of the district court’s inappropriate exercise of
jurisdiction and the risks that the district court may force the government to disclose sensitive national security and operational security concerns or face significant penalties from the court,” Deputy Assistant Attorney General Drew Ensign wrote the appeals court.
“This Court should also immediately reassign this case to another district court judge given the highly unusual and improper procedures — e.g. certification of a class action involving members of a designated foreign terrorist organization in less than 18 hours with no discovery and no briefing from the Government— that have been employed in the district court proceedings to date,” Ensign wrote.
The appeals court has yet to rule on Ensign’s request.