DC Circuit vacates judge's order to hold US in contempt for ignoring TRO blocking immigrant removals
A federal appeals court has vacated an order by a Washington, D.C., federal judge that found probable cause to hold the federal government in criminal contempt for violating his order blocking the removal of a group of immigrants under the Alien Enemies Act.
The U.S. Court of Appeals for the District of Columbia Circuit vacated an April 16 order by Chief U.S. District Judge James E. Boasberg of the District of Columbia in a 2-1 per curiam decision Friday.
How Appealing links to the Aug. 8 decision and links to news coverage, including stories by the New York Times and the Washington Times.
The immigrants were taken to a prison in El Salvador in Central America but were later transferred to Venezuela, according to the New York Times.
D.C. Circuit Judge Gregory Katsas and D.C. Circuit Judge Neomi Rao, appointees of President Donald Trump during his first term, wrote separate concurring opinions with differing reasons for their decision to vacate Boasberg’s probable cause order. D.C. Circuit Judge Corneila T.L. Pillard, an appointee of former President Barack Obama, dissented.
In a commentary at the Volokh Conspiracy, Josh Blackman, a professor at the South Texas College of Law in Houston, said his quick reading of the opinions leads him to think that Boasberg “on remand would have jurisdiction to proceed with some form of criminal contempt,” minus a “purge” option that drew objections from Rao.
Boasberg had said the federal government could purge itself of contempt by giving the immigrants a chance to challenge their removal in a habeas proceeding by asserting custody over them.
Boasberg issued the probable cause order, which included the purge option, even though the U.S. Supreme Court ruled April 7 that the immigrants’ case had been filed in the wrong venue. Boasberg said the Supreme Court decision, which lifted his temporary restraining order, “does not excuse the government’s violation.”
Rao, however, said Boasberg lost authority to coerce compliance with his order after the Supreme Court vacated it. She went on to say punishment through contempt “might still be available in these circumstances, but the district court cannot use the threat of such punishment as a backdoor to obtain compliance with a vacated and therefore unenforceable TRO.”
The dissent would not have vacated Boasberg’s probable cause order, while Katsas said he would vacate the order and terminate the criminal contempt proceeding.
Katsas said the case could be resolved based on ambiguities that resulted in different interpretations of Boasberg’s order.
The government had contended that the order banned removal of the immigrants from U.S. territory, but that had happened before he entered the TRO. Boasberg, however, said the order barred removal of the immigrants from U.S. custody, and his order was likely violated by their transfer to El Salvadoran custody.
The ambiguities must be resolved in favor of the party accused of contempt, Katsas said.
Although Katsas thought that the case could be resolved based on ambiguity, he also said Boasberg acted “to vindicate a TRO that the Supreme Court had vacated for lack of jurisdiction.”
He said Boasberg’s order “raises troubling questions about judicial control over core executive functions like the conduct of foreign policy and the prosecution of criminal offenses. And it implicates an unsettled issue whether the judiciary may impose criminal contempt for violating injunctions entered without jurisdiction.”
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