Judge steps up to block ICE's kidnapping of Guatemalan kids
It’s a strong rebuke to doomers who say the law doesn’t matter.
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On Sunday, the US government tried to kidnap hundreds of Guatemalan children and sneak them out of the country.
This gross abuse was only halted by the quick action of Judge Sparkle Sooknanan, who was on duty for emergency claims at the US District Court of the District of Columbia. Inside 36 hours, she issued a temporary restraining order, held a hearing, certified the affected children as a class so that none of them could be removed from the country, and demanded five status reports from the government. She didn’t let go until the Justice Department confirmed in writing that every single one of the children had been deplaned and transferred from the custody of the Department of Homeland Security to the care of Health and Human Services.
It was a remarkable display of judicial tenacity. It was also a testament to how thoroughly the Justice Department has shredded its credibility with the courts in just eight months.
Snatching kids from their beds
Shortly after 1am Sunday, lawyers for 10 undocumented Guatemalan children moved for a temporary restraining order barring their deportation. The children arrived here without a parent and have been in the custody of the Office of Refugee Resettlement (ORR), a humanitarian agency located inside the Department of Health and Human Services (and not the Department of Homeland Security, which oversees immigration enforcement).
Under the Trafficking Victims Protection Reauthorization Act (TVPRA), unaccompanied minor immigrants must be housed in the least restrictive environment that will keep them safe, and so most of these kids were living in foster care and group homes as their immigration proceedings and asylum claims were processed.
But over the weekend, ICE showed up and started grabbing up the kids. Here’s an email sent at 10:45pm on Saturday demanding that foster care facilities prepare the children for deportation in two to four hours:
Lauren Flores, Legal Director of the South Texas Pro Bono Asylum Representation Project (ProBAR), testified about the utter panic this unleashed:
At all of the shelters visited in the middle of the night, ProBAR staff witnessed children who had been pulled out of their beds. They were confused and scared. At Hands of Healing Los Fresnos, one young girl was extremely distraught, crying and repeatedly saying that she could not go back to Guatemala. At New Hope McAllen, one young girl was so scared that she vomited and asked to speak with a clinician. At Urban Strategies Alamo, one young teenager was scared that he might end up murdered like one of his family members. At Compass Connection in Harlingen, an attorney was able to meet with only one child. None of these children’s parents in their home country had requested their return.
By 4am Sunday, Judge Sooknanan issued an ex parte order forbidding the government from deporting the 10 named minor plaintiffs and scheduling a hearing for 3pm to consider the rest of the potential class.
After lawyers notified the court that children were already being loaded onto planes in Texas, the judge moved the hearing up to 12:30pm and issued a preliminary class certification barring deportation of any Guatemalan children covered by the TVPRA.
The shadow of JGG
At the hearing, the government was represented by Deputy Attorney General Drew Ensign. Ensign previously appeared before Chief Judge James Boasberg in the DC case captioned JGG v. Trump, which challenged deportation of Venezuelan immigrants to the notorious CECOT prison in El Salvador.
During a hearing on March 15, Judge Boasberg issued a temporary restraining order and ordered the government to turn around any planes in the air carrying Venezuelan detainees. When Judge Boasberg asked Ensign if he knew of any flights taking off, Ensign said he did not. Judge Boasberg then paused the proceedings so that Ensign could convey the order to DHS and stop any further flights.
Notwithstanding the court’s explicit order, the government did not turn around a flight of detainees that was already in the air. And during the pause in the proceedings when Ensign was supposed to be ensuring that DHS would comply with the ruling, two additional flights took off from Texas. A subsequent whistleblower report alleged that Ensign was well aware that the flights were taking off imminently and simply lied to the court.
Judge Boasberg was unable to stop DHS from renditioning those men to El Salvador. But the government’s unrepentant disregard for the court order in the JGG case served as the backdrop for everything that happened this past weekend.
In short, Judge Sooknanan made damn sure that Ensign and his bosses couldn’t get away with doing to those Guatemalan children what they did the to Venezuelan men exiled to CECOT.
Won’t get fooled again
At the hearing, Ensign once again professed to be blissfully unaware of any scheduled deportation flights of Guatemalan children. But Judge Sooknanan refused to be waved off with vague assurances that Ensign would contact “the client.” She paused the hearing multiple times to ensure that Ensign both conveyed her orders to DHS, and would attest on the record that no more flights would take off.
Ensign’s legal justification for the mass deportation was bizarre. He assured the court that the government was simply reuniting children with their parents in a plan that had been negotiated for months with the Guatemalan government. He did not explain why this plan necessitated snatching these children out of foster care in the middle of the night on a holiday weekend without prior notice to their counsel or guardians.
Ensign merely gestured in the direction of 6 USC § 279, a statute governing ORR’s treatment of unaccompanied immigrant children, which contains a subsection about “reuniting unaccompanied alien children with a parent abroad in appropriate cases.” In Ensign’s telling, this clause gives the government plenary power to deport children who have a living parent somewhere else.
“The Government of Guatemala has requested the return of these children, and all of these children have their parents or guardians in Guatemala who are requesting their return,” Ensign told the court.
Even if this were true, it would not justify deporting these children without due process. Under the TVPRA, unaccompanied immigrant children cannot be deported without a removal hearing, at which they are entitled to legal representation. In no universe does a provision instructing HHS to seek family reunification override statutes ordering DHS to initiate removal proceedings before deporting them.
But as it turned out Ensign’s representations were not true. As multiple affidavits demonstrate, these supposed “reunifications” were instigated by the Department of Homeland Security, not the children’s families.
The lead plaintiff in this case, denominated only by her initials LGML, testified that DHS is trying to return her to an unsafe family environment:
My name is LGML. I am 10 years old and I am from Guatemala.
I am currently detained at the Urban Strategies San Benito children’s shelter in San Benito, Texas.
I am in removal proceedings before the Immigration Court. My case has not been decided yet, and I still have the right to continue fighting for protection.
I recently learned that I may be at risk of being removed from the United States before my case is fully heard. I am very afraid that I could be deported even though I am still waiting for the Court to decide my case.
I do not have any family in Guatemala that can take good care of me. My father does not take good care of me. My mother is dead.
I came to the United States after experiencing abuse, neglect and family violence. If I am sent back, I will not be able to live safely. I won’t have anyone to protect me.
One child says that her parents received “a strange phone call” in August informing them that “the US government is planning to deport me with a larger group of Guatemalan minors.”
Another child testified that, on August 25, three Homeland Security agents showed up and demanded her family’s contact information. She says she’s scared of returning to Guatemala because of “drug dealers in the country who threaten my safety.”
There are dozens of heartbreaking affidavits, all of which confirm that the Guatemalan parents did not request that these children be deported.
No trust, just verify
After ordering Ensign to ensure that the planes did not take off — and not taking maybe for an answer — Judge Sooknanan spent the rest of Labor Day weekend ensuring that every single one of the children was returned to their humanitarian placement with ORR. She ordered the government to provide status updates at 4pm, 6:30pm, 8:30pm, 10:45pm on Sunday, and then another at noon on Monday. And Flores’s testimony demonstrates that if Judge Sooknanan hadn’t forced Ensign to call DHS right then and there, ICE would have illegally renditioned those kids.
Flores of ProBAR showed up at the airport in Harlingen that morning and saw that planes of children were already loaded up with the doors closed and stairs pulled away. She knocked on the door and showed them Judge Sooknanan’s class certification and order barring removal of the kids, but ICE officials ignored her.
Around 10:30 am, while I was standing outside the FBO airport building, I saw one of the planes begin to move. I identified it as the plane that I believed ProBAR’s clients to be on. I knocked on the door again. I watched the plane taxi away from the building. About 20 minutes later, the plane taxied back and parked again. I stayed watching the plane with the children on it. It was hot, sunny, in the upper 90s. I thought about the children on that plane and how hot and stuffy it must have been, how tired they must be, and how scared and confused.
Two hours later, the children were finally removed from the planes. And on Monday morning, DHS finally returned the last child to the custody of ORR. Thanks to Judge Sooknanan’s tenacity, every single one of those kids is now safe.
What now?
Unfortunately, Judge Sooknanan will not be handling the LGML case going forward. When court reopened Tuesday, the clerk randomly assigned it to Judge Timothy Kelly, a Trump appointee who has sometimes (but not always) been deferential to the administration’s sweeping claims of executive power.
A similar case in Illinois has also been assigned to Trump appointee Judge Martha Pacold, after duty Judge Georgia Alexakis issued a preliminary injunction Sunday barring the removal of affected children from the state. (The defendant in that case is HHS, not DHS, since the plaintiff children have always been in the custody of ORR.)
Judge Sooknanan scheduled a highly expedited briefing, tweaking Ensign in court for demanding more time (presumably to wrack his brains for some kind of legal justification for DHS’s flagrant violation of TVPRA). Judge Kelly modified this schedule only slightly, pushing the hearing out to Wednesday, September 10, at the behest of the plaintiffs.
But whatever happens now, it won’t happen under cover of darkness. DHS will have to make its case in court that it is entitled to deport these children without process, against the wishes of their own parents, and in apparent contravention of TVPRA. And that is thanks to Judges Sooknanan and Alexakis, who picked up the phone in the middle of the night and issued emergency relief — and then kept on issuing it to ensure that the government didn’t ignore court orders the way it did in March.
That’s a marker of how badly the Trump DOJ has burned its credibility with the judiciary. It’s also a strong rebuke to doomers who say that the law doesn’t matter because Trump will just ignore it and get the Supreme Court to bail him out later. The law mattered this weekend for the children pulled off those planes, and it continues to matter as courts step in to check the administration’s worst, cruelest excesses.
This was a win. Keep fighting.
That’s it for today
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Thanks for reading.
As Dye notes, Drew Ensign was the lawyer in JGG who claimed ignorance. If in fact he was ignorant of the facts, it is because he did not investigate before making statements of fact to the Court. He seems to have done the same thing in front of Judge Sooknanan.
Both Judge Boasberg and Judge Sooknanan have grounds for referring him to the Arizona Bar for disciplinary proceedings. Until people like Ensign are afraid to risk their law licenses, they'll continue to mislead courts and hurt people.
This judge is a hero, as we are finding judges to be in this crisis for our nation. These cruel, evil, racist people are all sadists and enjoy the torture of children. I am glad that these actions were followed up with Ro Khanna and Thomas Massey together with Marjorie Taylor Green, Lauren Bobert, and Nancy Mace were an unlikely group supporting these women and the need to tell their stories to the public. The brave women were out there and Trump was made uncomfortable. Too bad!
Every Democrat, every politician and every person on the street if interviewed should say, "Release the full Epstein Files. Justice must be served!" and then they can address any question being asked of them. I am in Chicago where Trump wants to send ICE, our politicians should make sure to speak about the Epstein Files, so that Trump knows that if he sends people to Chicago, he will be putting the Epstein Files front and center in the news.