A countdown is on for a plane of eight immigration detainees to be flown from a US Naval base in Djibouti to war-torn South Sudan Friday night, with lawyers for the migrants rushing to judges on the Independence Day holiday to try to block the takeoff to a country where they say their clients could face torture.
The legal fight over the constitutional protections for foreign nationals held by the US has had a fast-moving path through the courts, following a crucial Supreme Court decision on Thursday.
The Supreme Court decided in the administration’s favor that the eight migrants, who have been held in Djibouti in a converted storage container for weeks, are among those whom the government could send to a third-party country like South Sudan. The limbo for the migrants is the latest centerpiece in the Trump administration’s attempts to carry out its unusually aggressive approach in immigration enforcement and expand the president’s authority over migrant detainees.
But the detainees’ lawyers now are arguing they will face torture if they are sent to South Sudan by the US, and say they will be deprived of their constitutional rights. They argue the Trump administration is trying to unfairly hurt them with the deportation, which they cast in court filings as “punitive banishment” and “severe punishment” and warn the detainees could be put at risk of being “arbitrarily imprisoned, tortured, killed or severely harmed” if they are released in South Sudan.
So far Friday, the migrants earned a brief reprieve from Judge Randolph Moss in the DC District Court keeping the detainees on the ground in Djibouti.
“It seems self-evident the US government can’t take human beings and send them to a place where their physical well-being is at risk,” such as in South Sudan, either to punish them or to warn other possible migrants to the US of the consequences of illegal immigration, Moss said at the hearing.
The plane in Djibouti is scheduled to take off at 7:00 p.m. ET, the Trump administration said in court Friday.
What happens next is expected to be in the hands of a federal judge in Massachusetts, according to the still-in-progress court fight.
Moss held a pair of emergency hearings Friday afternoon before saying the case should be moved to Massachusetts.
He ordered the Trump administration not to move the migrants until 4:30 p.m. ET and told the migrants’ lawyers they must move fast to try to get a judge to intervene in Massachusetts. The detainees’ lawyers filed their new claims just after 4 p.m. in Massachusetts’ federal district court, where earlier proceedings around the group in Djibouti were held.
Attorneys for the migrants say sending them to war-torn South Sudan would be further punishment than the sentences they’ve already served for crimes. A lawyer argued to Moss in court that the administration’s actions in this situation are unprecedented and “unlike anything that has ever been done by the US with deportations before.”
The Justice Department, however, argued that the latest ask for relief should’ve been filed earlier, in a different type of claim and a different court than Moss’. “They can’t justify their claim-splitting,” said Justice Department attorney Hashim Mooppan.
The Justice Department lawyer also expressed frustration to the court that the detainees’ legal approach appears to be an attempt to “drag … out” their being moved out of Djibouti, and said that the US diplomatic relations could be hurt by the multiple rounds of the court fight, as it negotiates with other countries to take migrants it seeks to deport.
The eight detainees in Djibouti are from countries including Myanmar, Sudan, Mexico, Vietnam, Laos and Cuba, according to court filings, but the administration since springtime has moved fast to put detainees like them and others on planes and send them to other countries, often with a history of significant safety risks and brutality.
The administration also revealed in court Friday additional details on the diplomatic correspondence between the United States and South Sudan, saying that upon arrival, the migrants would be granted an immigration status in accordance with South Sudan laws and immigration procedures, and that the US did not ask for them to be detained there.
Moss said on Friday he believed the lawyers for the detainees were “doing their best to protect the lives and well-being of human beings.”
He also cited a stark travel warning from the State Department cautioning Americans headed to the country. “It does appear placing people in South Sudan does pose significant risks to their physical safety,” Moss said.
Still, Moss limited how much he intervened over the US’ plans. The judge explained the very short stay he issued Friday afternoon by saying he didn’t believe courts should issue administrative stays that last longer than is necessary.
This story has been updated with additional details.
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