Emergency Hearing over the Removal of Unaccompanied Minors to Guatemala

Sooknanan starts off by asking Ensign if he's aware that she just entered a new TRO on the docket to bar the removal of the putative class of minor children. He says no, he's not. She asks him to take minutes to circulate that order to his clients. We're in recess for 5 min while he does so.

This whole scenario feels like it's straight outta the government's Alien Enemies Act/J.G.G. playbook. In J.G.G., Boasberg entered TRO barring removal of named plaintiffs and set weekend emergency hearing on certification of class. But DHS started removing people just before/during hearing...

We're back and Sooknanan asks if any planes have taken off. Ensign says all of the planes are on the ground -- one of them might have taken off and turned around. He's not sure. His understanding is that if that's the case, plane has returned.

Sooknanan explains the circumstances of how/when she got the case. First got a call around 2 am last night, entered TRO and set hearing. Moved up hearing after receiving call from plaintiffs to notify her that children were in process of being removed. Then entered new TRO for putative class.

When Sooknanan wraps up, counsel for plaintiffs tell her that their understanding is that the planes with the children have been grounded but that the children have not been deplaned. Sooknanan asks Ensign for an explanation, he says it might be that they're waiting for resolution of this hearing

Sooknanan asks Ensign about legal authority for the removals. He discusses a statutory provision that authorizes the Secretary of Homeland Security to unite children with parents from whom they've been separated...

Ensign: "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..."

Judge Sooknanan isn't buying it... The plaintiffs are telling me, she says, that the children do not want to go back to Guatemala, that no request has been made, and that they fear returning to Guatemala, and may be subject to harm

Sooknanan: So to be clear, you are representing that all of the children who were put on the planes are children whose parents have requested their return? Ensign: That's what I've been told...Through the government of Guatemala, it's been a month long process to ID children who meet criteria

Sooknanan: And from the plaintiff's perspective, you do not think that that's true? Plaintiff's counsel: We know that is not true for all the children in the class...and even if it were, the provisions the government cites as legal basis does not override other protections in the statute

Sooknanan asks Ensign for his thoughts on that. He argues that the provision he cited is its own form of protection for the children -- it protects children by permitting the reunification with their parents/families.

Sooknanan: I have counsel telling me that there are children whose parents did not request their return to Guatemala. I have declaration representations contrary to what you're telling me. How does that [factual discrepancy] get resolved?

Ensign: That will be resolved through briefing...we can submit our position on that declaration. The judge asks when he plans to file response brief. He asks to have until Friday.

Sooknanan: I was thinking earlier than Friday, but if you need to get your ducks in a row and make sure you can figure out what's going on with all of these children, I'll allow it. But my order will stay in place. They're not going to be able to remove these children until you file a brief...

Sooknanan continues: They're not going to be able to remove these children until you file a brief and we have a hearing and I rule... Ensign: We understand that. We certainly object to the TRO, but we understand that would be process at this point...

Sooknanan talks about crafting her TRO to ensure that the children aren't removed until briefing is complete and she can rule. I do not want there to be any ambiguity about what I am ordering or what the government is to do down the road, she says.

Sooknanan then announces that she wants to take a 10 minute recess so that Ensign can go talk to DHS. She wants to know whether they are going to be deplaning the children and returning them to custody and what they expect to happen. Mr. Ensign, can you do that? Ensign: I'm certainly happy to try

Sooknanan: And if you don't know or can't find out [whether the children have been deplaned], a time estimate on when the agencies can confirm would be helpful. Because then I can ask you to file a status report.

Ensign: In terms of the immediate question of whether flights are leaving, they will not be leaving. Sooknanan: Okay, great. I think the main thing is a representation that the plan is to deplane and then return those kids to where they were prior

And now we're on recess while Ensign calls his clients.

We're back. The judge asks if Ensign has an update for her. Ensign: I have confirmed that the plan is to deplane the children and to return them to the custody of Office of Refugee Resettlement (ORR) Sooknanan asks him to file status report when that's complete

Sooknanan then says that she had an opportunity during the break to read some of the declarations filed by the named plaintiffs. She wants to read from them because they underscore the conflicting information she's received from the government about the children they want to remove.

The government has argued that the children are simply being reunited with their parents. But Sooknanan reads from a series of declarations that seem inconsistent with that claim.

In one, the child says that her parents [in Guatemala] recently received a strange call from someone with the US government, telling them that he or she would be deported with a larger group of people. "Since my parents told me this news, I feel terrible," the declarant says.

Sooknanan: Every one of these 10 children who are named plaintiffs speak about being afraid of going back to Guatemala. She reads a series of quotes in which the children express being afraid of return because they experienced neglect or abuse from one or both of their parents.

When she's done reading select quotes from the plaintiff's declarations, Judge Sooknanan sums it up as follows: "And so this doesn't quite line up with what I'm hearing from the government.

Judge Sooknanan to Ensign: "This is why we have process. This is why we have courts." Then she says that she also took the opportunity to look at the provision that Ensign cited. "I'm pretty skeptical that it gives the government the authority to do what you are claiming it does," she says.

Judge Sooknanan: For unaccompanied minors in particular, there are special procedural protections under the Trafficking Victims Protection Reauthorization Act...that's because this population is incredibly vulnerable. I don't see anything in what you're citing that would override those protections.

Judge Sooknanan says that she will wait to see Ensign's brief but at this point she's not seeing anything that would displace the statutory protections she just mentioned. Further, she says, I know it's extraordinary to enter a TRO on an ex parte basis. But I felt the situation was imminent...

Judge Sooknanan: As I said at the start of this hearing, I got a call at 2:36 am [last night] because the government chose the wee hours of the morning on the Sunday of Labor Day weekend to execute a plan to move these children. That's why we're here.

Judge Sooknanan: And I tried to reach the government. I have been up since then..and didn't reach anyone from the government until later this morning. And the imminence that the plaintiff claimed proved true, because, in fact, those planes *were* loaded. One actually took off and was returned.

Judge Sooknanan continues her monologue: And so, absent action and intervention by the court, all of those children would have been returned to Guatemala, potentially to extremely dangerous situations.

Judge Sooknanan to Ensign: And even now that the government has appeared, you're telling me that even though you think you have the authority to do this, and that what you're trying to do here is unify families, not violate the law, you need five days to respond.

Judge Sooknanan: And again, I'm not going to force you to respond sooner, but if you need five days, my order is going to stay in place. I have done all I can to try to make a decision based on what's in front of me. The government hasn't put anything in front of me to counter plaintiff's narrative

Judge Sooknanan: I am trying to do the best I can to fulfill my obligation as an Article III judge. I appreciate you all showing up today, and I particularly appreciate the government's representation. But I'm going to put it on the record again, just so there's absolutely no ambiguity...

Judge Sooknanan: "These children are going to be deplaned. They're going to be returned to ORR custody. And no attempts will be made to remove them from ORR custody and remove them to Guatemala, in light of my order, while these preliminary emergency proceedings are pending."

Judge Sooknanan: I will look for the government's status report letting me know that the children have been deplaned and returned to ORR custody. Ensign, for his part, says the government "obviously" believes these actions are lawful and that he looks forward to setting out why in the brief.

And we're done. Thanks to all who followed along on this Labor Day weekend. If you appreciate @lawfaremedia.org's live coverage of court proceedings, I hope you'll consider supporting our non-profit newsroom. See you next time! givebutter.com