Judge orders government to facilitate return of deportee after error

A federal judge has ordered the Trump administration to facilitate the return of a gay Guatemalan man whom officials deported to Mexico despite his claims that he would be persecuted there.

U.S. District Judge Brian E. Murphy in Boston issued a ruling Friday night after the government admitted that an “error” had been made. The government had previously argued that the man had said he was not afraid of being returned to Mexico, but said in a May 16 filing that it was “unable to identify” the immigration officer to whom he purportedly said this.

The man, identified by the initials O.C.G., is one of four plaintiffs in a class-action lawsuit challenging the Trump administration over the practice of deporting immigrants without allowing them to contest their removal on the basis that they might risk persecution, torture or death if returned to their country of origin or an alternate country of removal.

O.C.G., who fled Guatemala last year after receiving multiple death threats over his sexuality, was raped by one of the men who had been helping him reach the U.S.-Mexico border and then held for ransom, according to the complaint.

An immigration judge in February had granted O.C.G. humanitarian protection called withholding of removal, which prohibited his deportation to Guatemala, the complaint states. Two days later, immigration officials put him on a bus to Mexico, where he was given the choice to remain in a detention facility while he applied for asylum or be sent back to Guatemala — a “Hobson’s choice” in that there was really only one option available, his attorneys wrote in the complaint.

“He could either go to another detention facility hours away by bus where they said he would remain detained and wait several months to apply for asylum in Mexico, a foreign country in which he was raped, held hostage, and extorted and did not feel safe, or Mexican authorities would take him to Guatemala, the country from which he fled and in which an [immigration judge] had found it was more likely than not he would again be persecuted,” his attorneys wrote. He has since been living in hiding in Guatemala, they added.

In his ruling Friday, Murphy characterized the deportation of O.C.G. as “the banal horror of a man being wrongfully loaded onto a bus and sent back to a country where he was allegedly just raped and kidnapped.” He ordered the defendants to “take all immediate steps, including coordinating with Plaintiffs’ counsel, to facilitate the return of O.C.G. to the United States.”

Attorneys for the government had previously argued that the court lacked jurisdiction to order O.C.G.’s return and that O.C.G. had the ability to dispute his removal after he was sent back to Mexico.

“The person in question was an illegally present alien who was granted withholding of removal to Guatemala,” said Tricia McLaughlin, assistant secretary for public affairs at DHS. “He was instead removed to Mexico, a safe third option for him, pending his asylum claim. Yet, this federal activist judge is ordering us to bring him back, so he can have an opportunity to prove why he should be granted asylum to a country that he has had no past connection to.”

“We expect a higher court to vindicate us in this,” she added.

In a notice filed May 16, attorneys for the government acknowledged an “error” in previous filings. According to a signed declaration, Brian Ortega, an assistant field office director for ICE, admitted that he had signed a statement March 25 that said an officer with Enforcement and Removal Operations had asked O.C.G. whether he was afraid of being returned to Mexico, to which O.C.G. responded that he was not.

Ortega said the statement he signed was based on ICE’s Alien Removal Module, a software tool that permits staff to place comments into each person’s record regarding the status of their case or any other relevant case information. But upon further investigation, “ICE was unable to identify an officer or officers who asked O.C.G. if he feared a return to Mexico,” Ortega said, noting that at the time he signed the original declaration, he believed the module note to be accurate.

Murphy called the situation “troubling” and ordered discovery — “including depositions of the individuals involved in the false declaration and underlying data entries” — into how the court “was given false information, upon which it relied, twice, to the detriment of a party at risk of serious and irreparable harm.” He said that for an immigration judge to grant O.C.G. a withholding of removal, the judge would have “found it more likely than not that O.C.G. would suffer serious harm if sent back to Guatemala.”

Earlier this year, the Trump administration deported another man who had been granted a withholding of removal order by an immigration judge — Maryland resident Kilmar Abrego García, who was deported to El Salvador, where he remains in a detention center despite a judge ordering the administration to facilitate his return. While the administration has admitted that Abrego García’s expulsion from the U.S. was based on an “administrative error,” it said it cannot remove him from the Salvadoran prison because he is now in the custody of a foreign government.

Murphy appeared to acknowledge Abrego García’s case in his Friday ruling, writing that “facilitate in this context should carry less baggage than in several other notable cases. O.C.G. is not held by any foreign government.”

“The litigation team is thrilled that O.C.G. will be able to return to safety in the United States,” Trina Realmuto, the executive director of the National Immigration Litigation Alliance and attorney for O.C.G., said in an email. “We will work with the government to arrange a return plan as expeditiously as possible.”

A day earlier, Murphy ruled that the Trump administration had violated a court order by attempting to deport several migrants to South Sudan, prompting President Donald Trump and the White House to lash out against him. Trump wrote on his social media platform, Truth Social, that Murphy “knew absolutely nothing about the situation.”

“The Judges are absolutely out of control, they’re hurting our Country, and they know nothing about particular situations, or what they are doing — And this must change, IMMEDIATELY,” Trump wrote.

Trump has repeatedly butted heads with the federal judges who have ruled against some of his early actions as president. The calls by him and his allies to have judges removed and his statements calling for the impeachment of one federal judge drew a rare rebuke from Chief Justice John G. Roberts Jr., who said that “impeachment is not how you register disagreement with a decision.”