(WASHINGTON) -- A federal judge in Boston Thursday will consider pumping the brakes on a controversial Trump administration policy of removing migrants to countries where they have no prior connection without allowing them to raise concerns about their safety.
A group of noncitizens with final removal orders filed a federal lawsuit challenging the policy last month, arguing that being removed to countries like El Salvador, Honduras or Panama -- despite having no connection to those countries -- risks their safety and violates their rights.
U.S. District Judge Brian Murphy, a Biden appointee who temporarily blocked the policy last month, will consider extending his order and certifying a class of noncitizens who would be protected from removal to a so-called third country.
"The need for preliminary injunctive relief in this case is vital," lawyers representing the men argued in a recent court filing. "Indeed, it may be the difference between safety and torture, life and death, for many noncitizens, including ones who have been living and working in this country for decades."
The hearing also comes as the Trump administration faces new allegations that they violated Judge Murphy's order by removing more than a dozen migrants to El Salvador last month despite the judge's order barring such transfers.
The plaintiffs who brought the lawsuit argue that the Department of Homeland Security's policy results in the removal of migrants to third countries without providing them a chance to raise concerns about potentially being persecuted, tortured, or killed. In one instance, they allege that the Trump administration removed a Guatemalan man to Mexico without giving him the chance to raise concerns that he was previously raped there and now fears prosecution in that country.
"Defendants have resorted to violating noncitizens' clear statutory rights to apply for protection from removal to countries where they face persecution or torture," the lawyers wrote.
Lawyers with the Department of Justice have argued that Judge Murphy lacks the jurisdiction to intervene in DHS' policies after a final order of removal has been issued by an immigration judge.
They have also argued that a preliminary injunction is no longer necessary because DHS implemented a new policy of getting "diplomatic assurances that aliens removed from the United States will not be persecuted or tortured," or screening noncitizens for their eligibility for protections under the United Nations' Convention Against Torture.
"As this Court indicated during the hearing on Plaintiffs' motion, Defendants are entitled to issue guidance to satisfy any potential due process concerns. Defendants have now done so," they argued.
But lawyers for the men who brought the lawsuit have argued that those measures are "woefully inadequate" and pointed to two recent examples where they allege that DHS potentially violated the court's temporary order.
Two days after Judge Murphy blocked the deportations, the Trump administration announced that it had removed 17 alleged members of Tren de Aragua and MS-13 to El Salvador's notorious CECOT mega-prison. According to the plaintiffs, at least two of the men on those flights had final orders of removal to Venezuela and were never given the right to challenge their removal to El Salvador.
According to the plaintiff's lawyers, one of those men is Maiker Espinoza Escalona, who entered the United States last year with his partner Yorely Bernal Inciarte and their one-year-old baby.
After the three turned themselves in to immigration authorities, they were separated, their family told ABC News. Inciarte has been detained at a detention center in El Paso, Texas, their baby has been in government custody, and Escalona is detained at CECOT in El Salvador, according to Inciarte's mother.
The Trump administration alleged that Escalona is a member of the Venezuelan gang Tren de Aragua, an accusation his family denies.
"They are liars," said Inciarte's mother Raida of the Trump administration. "I cannot believe that half of Venezuela is Tren de Aragua. That can't be."
"For them to be sent [to El Salvador] you have to investigate and prove they are what they are being accused of," Raida said. "We're distraught, I don't wish this on anyone."
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