A Federal Judge Refuses to Pound Sand: Due Process, Deportations, and a New Order That Changes the Fight

By Michael Popok,

The legal fight between federal district judge Jeb Boasberg and the Department of Justice is escalating again.

In a new order that was released, the judge made clear that the government cannot simply tell a federal court to go pound sand when people’s due process rights are at stake. That is not my spin on it. That is the practical reality of what came down.

The case is called JGG, it was brought by the American Civil Liberties Union on behalf of 137 migrant men whom the government claims, without proof, are members of a terrorist organization. These men were deported in the middle of the night despite objections and prior court orders. First they were sent to prisons in El Salvador. Later they were moved to Venezuela, which critics say was done to place them outside the judge’s reach.

Now Judge Boasberg has taken a decisive step. After giving the government a chance to propose a solution for restoring due process and receiving no workable answer, he has ordered the government to facilitate the return of those individuals to the United States, even if that means they remain in custody, so they can receive habeas corpus hearings and the constitutional protections the Supreme Court says they are entitled to.

When the Government Refuses to Engage

On page one of his memorandum opinion, the judge explains that he offered the government an opportunity to propose steps that would allow hearings on the migrants’ habeas claims. Those hearings would let them challenge their designations under the Alien Enemies Act.

According to the order, the government’s response amounted to refusing meaningful participation in the process. The judge wrote that he believed other paths would be more productive than “pounding sand,” and he pointed directly to Supreme Court precedent requiring courts to ensure access to due process.

Because of that refusal, the court will now require the government to facilitate the return from third countries of plaintiffs who want to come back. Others will be allowed to file supplemental habeas pleadings from abroad.

How We Got Here: The Abrego Garcia Precedent

This ruling did not happen in isolation. The Supreme Court recently addressed a related case involving Kilmar Abrego Garcia, a Maryland resident who was also sent to a prison in El Salvador. In that case, the Court supported a federal judge’s authority, and obligation, to order the government to facilitate his return so he could receive a due process hearing.

That precedent clearly influenced Judge Boasberg’s decision.

He asked the government to explain why he should not follow the same legal framework here. The government argued that Venezuela is unstable, that foreign affairs considerations limit the court’s authority, and that it had no solution to offer. The judge was not persuaded.

ACLU Proposals and a Measured Approach

On page two, Judge Boasberg notes that the plaintiffs, represented by the ACLU, proposed what he described as measured and reasonable steps. They asked for permission to file supplemental habeas pleadings, requested remote hearings for individuals in third countries, and sought government-funded returns to the United States for those who want to come back.

The judge called this a prudent approach. He also emphasized that the government failed to offer any alternative plan to remedy the constitutional harm.

One of the more striking details is that some of the deported individuals have said they would rather be detained in U.S. immigration custody than remain free in Venezuela or elsewhere if that is what it takes to assert their legal rights.

A Direct Rebuke

The strongest language in the order appears later. The judge writes that he is mindful of what he calls the flagrancy of the government’s violations of due process rights and refuses to allow the plaintiffs to remain stuck in what he described as a situation with out a solution.

He also notes that this entire conflict could have been avoided if the government had provided constitutional protections before deporting the individuals in the first place.

The court’s message is straightforward. Due process is not optional.

What the Order Requires

The ruling sets out specific next steps.

Plaintiffs must notify the court of where their clients are currently located and identify which individuals want to return to the United States. The government must promptly return passports and travel documents upon request. By March 13, the government must file a status report explaining how and when it will transport any plaintiffs who choose to come back.

These directives place responsibility squarely on the government to move the process forward.

What Comes Next

An appeal is almost certain. The case will likely head to the D.C. appellate court, and the fight is far from over.

For now, though, Judge Boasberg’s order stands as a clear assertion of judicial authority and a reminder that constitutional rights do not disappear because someone has been deported or moved across borders.

The administration has targeted this judge repeatedly, even attempting to bring ethics complaints against him that were ultimately dismissed. Still, the judge’s position remains consistent. The rule of law requires process, and federal court orders are not suggestions.

I will continue following this case closely. To me, this moment is about more than one ruling or one group of plaintiffs. It raises a fundamental question about whether due process remains real when the stakes are highest, and whether the courts will continue to insist that the government answer when constitutional rights are on the line.