Another allegation that the Trump administration sought to deport aliens outside Congress’s laws in the dead of night on a holiday weekend.
The Trump administration has once again been thwarted by a court while attempting to deport aliens, in likely violation of federal law, in the dead of night on a holiday weekend. This time, at issue are approximately 76 minors (ages ten through 17) from Guatemala. Reports indicate that the number of affected Guatemalan minors — from a category known in immigration law as unaccompanied alien children (UAC) — could be upwards of 600.
At 2 a.m. Sunday morning, Judge Sparkle Sooknanan, a Biden appointee who was on duty this weekend to deal with any emergency applications to the federal district court in Washington, D.C., received notice of a complaint filed an hour earlier by lawyers for the Guatemalans. The complaint alleged that the administration had begun acting on a plan to board the minors onto planes later in the day, apparently in Texas, and fly them to their native Guatemala.
As ABC News reported, Judge Sooknanan later noted that she personally tried to reach the Justice Department at 3:43 a.m. (the report does not indicate which district U.S. attorney’s office — it was probably Washington, D.C.) to say she wanted to hear from the government before issuing a temporary restraining order. She stated, “We are here on a holiday weekend where I have the government attempting to remove unaccompanied minors from the country in the wee hours of the morning on a holiday weekend, which is surprising, but here we are.”
The incident was reminiscent of the Trump administration’s March weekend flights of hundreds of Venezuelan aliens to El Salvador, many of them based on the president’s dubious invocation of the Alien Enemies Act (AEA). (That escapade included the now notorious illegal deportation of Kilmar Abrego Garcia, a Salvadoran as to whom a standing DOJ immigration court order against repatriation had been issued.) The administration attempted a similar gambit on Easter weekend in April, only to be stopped by the Supreme Court.
Sooknanan issued a TRO against the deportations at about 4 a.m. She initially ordered a hearing a 3 p.m. Sunday, but moved it up to 12:30 p.m. out of concern that the administration might have flights depart in the interim. Justice Department Deputy Assistant Attorney General Drew Ensign, who runs the Civil Division’s Office of Immigration Litigation and has been central to the DOJ’s most controversial immigration cases, is handling the case. He reported to the court that he believed one flight on which minors had been boarded might already have taken off, but that the plane had returned and the minors would be deplaned due to Sooknanan’s intervention.
The lawsuit was originally filed on behalf of about ten of the minors, but the court expanded it to a “putative” class of similarly situated minors (“putative” because, at this preliminary stage, the class has not been certified under the applicable federal procedural rules). Judge Sooknanan’s order was not posted on the district court’s website when I checked this morning (no surprise given today’s Labor Day holiday). ABC News quotes the TRO as follows:
The Court ORDERS that the Defendants [i.e., Trump administration officials] cease any ongoing efforts to transfer, repatriate, remove, or otherwise facilitate the transport of any Plaintiff or member of the putative class from the United States[.] . . . The putative class includes all Guatemalan unaccompanied minors in Department of Health and Human Services Office of Refugee Resettlement custody as of 1:02 AM on August 31, 2025, the time of the filing of the Complaint, who are not subject to an executable final order of removal.
As usual, at issue is the Trump administration’s claim of power to remove or deport aliens from the United States outside the laws enacted by Congress.
It is Congress, not the executive branch, that has the power to make deportation and removal law. Nevertheless, administration officials have contended since the second Trump administration began that the executive has inherent authority in this area because of the president’s broad foreign affairs power. The DOJ has also cited Congress’s ample delegation to the president of immigration law and emergency authority (the latter is the rationale for Trump’s aforementioned invocation of the AEA, a measure conceived for wartime conditions).
Lawyers for the Guatemalan minors argue that the administration is violating several laws enacted by Congress regulating UAC detention and removal. Ensign counters that the administration is acting within the law (it’s not clear from the reporting what law(s) the DOJ has invoked), but mainly appears to make a semantic claim, to wit: The administration is not engaged in “deportation” or “removal,” but rather “repatriation” for the sake of “family reunification,” pursuant to what’s described as an agreement between the Trump administration and the Guatemalan government.
A problem with that line of reasoning, it seems to me, is that there are specific laws by which Congress has prescribed how unaccompanied minors are to be handled. It is important to note: The point here is not the wisdom of these laws, which in my opinion are flawed; the point is that they are laws, Congress made them, and the president is supposed to execute them, not circumvent them.
Moreover, while family reunification is the policy that animates some immigration law (a policy that is overemphasized and insufficiently limited, in my view), (a) a policy behind statutory law is not itself statutory law; (b) “family reunification” policy generally refers to allowing family members to relocate to the U.S., not induce their removal from the U.S.; and (c) an agreement between the executive branch and a foreign government cannot supersede congressional statutes.
Federal immigration law provides that removal proceedings prescribed by statute “shall be the sole and exclusive procedure for determining whether an alien may be . . . removed from the United States” (Section 1229a(a)(3)). In 2008, with Democrats in control of Congress at the end of the Bush-43 administration, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), ostensibly well-meaning protection for unaccompanied alien children (UAC) that sowed the seeds for an explosion of illegal immigration. (See this NR column by Center for Immigration Studies executive director Mark Krikorian on, among other things, flaws in TVPRA and its interpretation by the government.)
While adults who attempt to enter illegally are subject to an expedited removal process, a UAC from a country “non-contiguous” to the U.S., such as Guatemala, must be maintained in our government’s custody — transferred within 72 hours to the Office of Refugee Resettlement (ORR), which works with various contractors (since Congress has provided woefully insufficient facilities and funding for the ORR to maintain the minors directly). (See Section 1232(b)(3).) The UAC is then placed into removal proceedings, which can entail immigration court removal hearings, asylum claims, and other claims to remain in the U.S. (By contrast, aliens from the contiguous countries of Mexico and Canada can be returned rapidly to those countries. Hence, the shift in the illegal immigration pattern from Mexican adults to family units and UAC from Central America and elsewhere.)
Politico reports that Angie Salazar, the Trump administration’s acting ORR director, has threatened lawsuits against ORR contractors who defy lawful requests from her agency to surrender custody of minors to Immigration and Customs Enforcement agents. That admonition was set forth in a memo — dated yesterday, the same day as the frenetic court proceedings.
Just as the Trump administration claims the AEA authorizes it to deport aliens outside Congress’s immigration laws (if they are covered by President Trump’s AEA proclamation against Venezuelan members of the Tren de Aragua gang, which has been designated as a foreign terrorist organization), so too does the administration appear to be arguing that it needn’t comply with Congress’s mandate of immigration court proceedings if the president negotiates a deal with a foreign government to facilitate family unification.
I don’t think that is going to fly — and I would say that as a legal matter, even if there were not apparent factual disputes. Lawyers for the UAC are already alleging that the administration’s claims to be acting on behalf of Guatemalan parents who want their children returned to their home country are baseless. They also claim many of the minors fear abuse and neglect in Guatemala. (To be clear, such fears could be valid, but that would not necessarily make them a legal basis to grant relief from removal. What federal immigration law is mainly concerned about is persecution by a foreign government.)
The DOJ ultimately notified the court that all the minors who had been boarded on planes destined for Guatemala had been taken off the planes and were still in the U.S.
As was the case with the Venezuelan AEA deportations, Sooknanan’s TRO does not apply to any aliens as to whom there a final order of removal has been entered. That is to say, if an alien has been approved for deportation under the ordinary operation of Congress’s immigration laws, the court is not blocking such deportations.
As noted above Judge Sooknanan handled the case because it came to the court as an emergency application. It is not clear that she will be the judge assigned to the case for all purposes. We should know more about that, and about any scheduling of further proceedings, once the work week is underway.