The Chaos and Cruelty of DVD v. DHS

In a March interview on MSNBC, Senate Minority Leader Chuck Schumer (D-N.Y.) asserted that the United States would enter a state of constitutional crisis if the Trump administration were to directly defy an order of the Supreme Court. Three months later, President Trump has yet to take that step. But even if his administration hasn’t yet crossed the Rubicon, it has developed a troubling pattern of dipping its toes into the water—delaying implementation of court orders, adopting hyper-technical interpretations of judicial rulings in order to engineer loopholes, and asserting ignorance and confusion whenever something goes wrong.

Many of the most prominent instances of such behavior—what Daniel Deacon and Leah Litman have termed “legalistic noncompliance”—have taken place in immigration cases, such as the attempts to transport Venezuelans to El Salvador under the Alien Enemies Act and the removal of Kilmar Abrego Garcia. One case that has received less attention, though, stands out as a chronicle of noncompliance from the very beginning—a cascade of sloppiness and calculated misunderstandings on the government’s part that has resulted in potentially serious danger for a gay Guatemalan man removed from the United States, along with the continued detention of eight men at a U.S. military base in Djibouti. The case, DVD v. DHS, is a story of government infractions building on infractions for month after month. Examining how this story has unfolded, and how the judge presiding over DVD is grappling with the Justice Department’s behavior, provides a window into the Trump administration’s complicated relationship with the courts.

DVD concerns one aspect of the Trump administration’s effort to effectuate Trump’s promised “mass deportations”—in this case, by removing noncitizens to third countries rather than to their country of origin, sometimes with little or no warning. (“DVD” are the initials of one of the plaintiffs, identified as a Cuban resident of Massachusetts whose wife and two children are U.S. citizens.) When an immigration judge orders an individual removed from the country, the judge will typically designate a specific country or countries to which the person will be removed, often the person’s country of origin. The noncitizen will also have an opportunity to apply for a range of forms of protection from removal—a process mandated by both domestic and international law, including the Convention Against Torture (CAT). As the complaint in DVD sets out, in late February 2025, the Department of Homeland Security (DHS) adopted a policy that directed Immigration and Customs Enforcement (ICE) to examine the cases of noncitizens who had previously been released from immigration detention because, for a variety of reasons, they couldn’t be deported. Then, DHS would identify a new country not previously designated by an immigration judge—described as a “third country”—to remove them to.

Some of these people had final orders of removal, but the designated country wouldn’t accept them back or coordinate with the U.S. to take them. Some had received protections from removal, either withholdings of removal (which bar an individual from being deported to a specific country where they face risk of serious harm) or protections under CAT (which bar removal to a country where an individual is likely to be tortured). Because those protections attach only to the specific country designated by the immigration judge, ICE could then re-detain the individuals and remove them to a third country to which those protections didn’t apply.

That process should have involved informing the noncitizens of the country to which they were to be removed, the DVD plaintiffs argue, allowing them to apply for protections against removal to those countries as well. In practice, though, that didn’t always happen. Among the named plaintiffs in DVD is a gay Guatemalan man identified as OCG, who received a withholding of removal from Guatemala, where he had been persecuted for his sexuality. Yet OCG was then abruptly deported to Mexico—a country where he had recently been the victim of sexual violence—with, he said, no chance to object. Faced with the prospect of prolonged detention in Mexico, OCG chose to return to Guatemala, where he went into hiding. Keep OCG in mind; we will come back to his story later.

To prevent future such cases, the DVD plaintiffs sought both a class certification of noncitizens with final orders of removal whom DHS is now seeking to deport to a third country, and a preliminary injunction requiring that class members receive advance warning of the country to which ICE is seeking to remove them, along with an opportunity to seek protection against such removal. Judge Brian E. Murphy of the U.S. District Court for the District of Massachusetts quickly issued a temporary restraining order blocking the government from removing the named plaintiffs, or “any individual subject to a final order of removal,” to “a country other than the country designated for removal in the prior immigration proceedings” without providing written notice of the country in question and a “meaningful opportunity” for the individual to file for protections.

These requirements would, again and again, prove remarkably difficult for the government to abide by.

Guantanamo Bay 

Judge Murphy issued the temporary restraining order (TRO) on March 28. Over the subsequent weeks, the government gradually admitted that it had shipped noncitizens to third countries almost immediately after the judge’s ruling.

On March 31—two days after the TRO had been issued—at least four men were removed to El Salvador with little warning, court filings show. All four appear to have been Venezuelans with final orders of removal to Venezuela; the government claimed they were members of Tren de Aragua. Family members of two of the men identified them in photographs of prisoners detained in the Terrorism Confinement Center (CECOT). Several weeks later, Secretary of State Marco Rubio and Salvadoran Minister of Justice and Public Security Gustavo Villatoro announced the arrival of another batch of Venezuelan deportees at CECOT. According to class counsel, at least some had final orders of removal to countries other than El Salvador.

In the government’s view, though, this was entirely acceptable under the TRO—because the agency responsible for flying the planes to El Salvador was the Department of Defense, not DHS. The Department of Homeland Security had moved the individuals in question from detention centers on the U.S. mainland to Guantanamo Bay. Then, according to the government, the Defense Department transported them to El Salvador “on a flight with no DHS personnel onboard,” without DHS giving the Pentagon any direction to do so. And because the Defense Department was not a defendant in DVD, the Justice Department argued, it had no obligation to abide by Judge Murphy’s TRO.

There are a number of reasons to be dubious of this claim. It is somewhat difficult to imagine why, or how, the Defense Department would have acted on its own and chosen to remove these individuals to El Salvador entirely without coordination with DHS, or how DHS would have flown them to the military base at Guantanamo without first reaching out to the Defense Department. Additionally, if DHS were somehow not directing the Defense Department’s actions, then the Pentagon’s apparently spontaneous decision to carry out deportations from Guantanamo could potentially raise even more questions about the legality of this kind of military role in law enforcement.

During an April 28 hearing, after Judge Murphy questioned what authority the Defense Department would have to carry out such an action, Justice Department attorney Jonathan Guynn said he did not have an answer on hand: “It’s a new day, and there have been lots of changes,” Guynn explained. This apparently did not satisfy the judge, who ordered discovery into the deportations from Guantanamo to El Salvador and the precise nature of “the relationship between the Department of Homeland Security and the Department of Defense.”

As this story was unfolding, Judge Murphy issued a preliminary injunction on April 18 memorializing limitations on DHS’s power to abruptly remove noncitizens to third countries, along with an order certifying the class of all individuals “whom DHS has deported or will deport on or after February 18, 2025, to a country (a) not previously designated as the country or alternative country of removal, and (b) not identified in writing in the prior proceedings as a country to which the individual would be removed.” The injunction required that class members receive “meaningful opportunity … to raise a fear of return for eligibility for CAT protections,” which require that, as an initial matter, noncitizens show a “reasonable fear” of torture if they were to be removed to the country in question. (Because of a confusing tangle of jurisdiction-stripping statutes, Judge Murphy found that other withholding of removal protections were not available as classwide relief.) On April 30, Murphy issued another order requiring that “Defendants may not cede custody or control in any manner that prevents an alien from receiving the due-process guarantees outlined in the April 18, 2025 preliminary injunction.” In other words, no more juggling noncitizens from agency to agency in an attempt to evade the court’s orders.

Libya 

The government managed to abide by this order for about a week. Then, on the afternoon of May 7, the plaintiffs filed an emergency motion for a temporary restraining order—alerting Judge Murphy of “alarming reports from class members’ counsel and from the press” that the Trump administration was in the process of transporting a group of noncitizens onto planes in order to ship them to Libya, a country none of them were from. Libya, as the plaintiffs pointed out, has become “notorious for its human rights violations, especially with respect to migrant residents.” In 2023, the United Nations released a report arguing that the widespread torture and enslavement of migrants in the country amounts to a crime against humanity.

News reports and court filings suggest that the intended flight to Libya was operated by the Defense Department. But instead of first transporting class members to Guantanamo and then having the Defense Department move them abroad, as the government had before, this time DHS handed the would-be passengers off to the military on the mainland—this time, from the South Texas ICE Processing Center in San Antonio to Lackland Air Force Base.

Declarations filed by lawyers for two of the men set to be removed to Libya sketch a rough timeline of what happened. On May 5, the lawyers state, their clients were informed by ICE that they would be removed to Libya and shown a document, only in English; they were not informed that they had the option of expressing reasonable fear of torture if they were to be deported to Libya. When one of the lawyers successfully contacted a supervisory ICE officer in San Antonio about this news, he recounted, the officer said he had “no explanation” for why a man with an order of removal to the Philippines was being put on a flight to Libya, and “said something along the lines of … it ‘is not right and makes no sense.’” Nevertheless, early in the hours of May 7, the men were placed on a bus to Lackland. They never left the bus but sat at the base for three or four hours, in view of a military plane, before turning around and arriving back at the ICE processing center at around 11 a.m. Central time. It’s not clear why the passengers were never boarded onto the plane, but it’s notable that class counsel emailed the Justice Department at 9:55 a.m. Eastern time (that is, 8:55 a.m. Central)—when, the timeline suggests, the migrants were probably sitting on the bus on the tarmac—inquiring about news reports on plans for deportations to Libya.

After not receiving any more information from the Justice Department, class counsel filed their emergency motion. Judge Murphy quickly issued an order, writing, “If there is any doubt—the Court sees none—the allegedly imminent removals, as reported by news agencies and as Plaintiffs seek to corroborate with class-member accounts and public information, would clearly violate this Court’s Order.” He also ordered briefing on whether the Defense Department “should be joined as a party in this case.”

It remains unclear whether the Trump administration coordinated with governing authorities in Libya when planning to transport the deportees there. The Wall Street Journal reported that the two warring Libyan governments—the internationally recognized government in Tripoli and a rival government in Benghazi—denied any agreement with the United States, although the regime in Tripoli had reportedly been interested in making a deal to that effect this winter.

South Sudan

Perhaps hoping that the third time would be the charm, the government would soon attempt another creative interpretation of Judge Murphy’s orders. The pattern of events echoed the Libya incident—class members abruptly moved from immigration detention to a military base, with little warning that they were about to be shipped to a dangerous country to which none of them had any connection.

Once again, notice of the scheme appeared on the DVD docket in the form of an emergency motion for a temporary restraining order by the plaintiffs. Class counsel warned in the May 20 filing that the government was in the midst of attempting to remove at least two class members to South Sudan.

One of them, a Burmese man identified as “N.M.,” had previously been among the group whom the government attempted to deport to Libya. According to a declaration filed by the plaintiffs, on the previous day, May 19, ICE presented N.M. and one of his attorneys with a document indicating that he would be removed to South Africa. Ten minutes later, the attorney’s email program notified him that the sender had attempted to recall the message. About an hour and a half after that, the attorney received another message that N.M. would be removed to South Sudan, a country in the midst of a civil war and which the State Department has warned Americans against traveling to because of the danger. At this point, the attorney had scheduled a video call with N.M. for 9 the following morning—but at around 8:30 a.m., an ICE officer emailed him that N.M. had already been “removed this monring” (sic) to South Sudan.

(Later, it would emerge that the government had actually changed course at the last minute and deported N.M. to Myanmar, his country of origin—meaning there was no need to attempt to ship him first to Libya and then to South Sudan.) 

This time, Judge Murphy rapidly convened a hearing—so rapidly that notice of the hearing did not appear on the DVD docket until after it was concluded. According to the New York Times, the Justice Department informed the judge that information about the location of the plane was classified, as was information about the plane’s destination. (The attorney, Elianis Perez, had no answer when asked under what authority the government had classified that information. Later in the hearing, acting DHS General Counsel Joseph Mazzara said that he was not sure the information was classified but that he didn’t know where the plane might be.) Judge Murphy warned that “this seems like it may be contempt” and ordered the government not to relinquish custody of the men once the flight touched down.

The hearing resumed the next morning, on May 21, in a marathon session that stretched well into the afternoon. Perhaps attempting to get ahead of Judge Murphy, DHS convened a baffling press conference earlier that morning about the flight, revealing that eight men had been on board—only one of whom was from South Sudan. (Confusingly, a man matching the description of N.M. was among them, though the Justice Department had stated the night before that N.M. was now in Myanmar.) DHS spokeswoman Tricia McLaughlin displayed mug shots and information about the criminal convictions of the men on the South Sudan flight, claiming that “no country on earth wanted to accept them because their crimes were so uniquely monstrous and barbaric.” (The offenses in question include arson, murder, drug trafficking, and sexual assault, including of a minor.) Puzzlingly, though the press conference was available to stream online under the title “DHS Press Conference on Migrant Flight to South Sudan,” McLaughlin told a reporter that South Sudan was “absolutely not” the “final destination” of the flight. 

By the time the hearing reconvened, the Justice Department informed Judge Murphy that the plane had landed—though it would not say where in open court—and that the deportees were still sitting on board. Perez and fellow Justice Department attorney Drew Ensign argued that the government had abided by the terms of Murphy’s order: The class members had been given notice of their removal to South Sudan (16 hours of it, overnight) and an opportunity to express “reasonable fear” under the Convention Against Torture (even though they had not been informed of their right do so). 

Judge Murphy was unconvinced. The compressed time frame, he said, was “plainly insufficient” in terms of providing class members with sufficient warning and a chance to raise concerns of torture. “The department’s actions in this case are unquestionably violative of this court’s order. … I don’t see how anybody could say these individuals had a meaningful opportunity to object." In particular, as he would point out in a later ruling, “class members … had no opportunity to learn anything about South Sudan, a nascent, unstable country” that many of the deportees may never have heard of. 

At one point, Ensign suggested that the matter derived from a “misunderstanding” by DHS because “the Court’s preliminary injunction motion wasn’t specific enough.” Judge Murphy went on to issue a memorandum clarifying the injunction “given Defendants’ position that further detail would help Defendants comply”—specifying that a “meaningful opportunity” to object to deportation to a newly identified third country required that the government must provide “a minimum of ten days … to raise a fear-based claim for CAT protection prior to removal.” The judge also added that the injunction applied not only to the defendants but also to their “officers, agents, servants, employees, attorneys, any person acting in concert, and any person with notice of the Preliminary Injunction.” 

This left the question of what to do with the men illegally removed from the United States, currently sitting on a tarmac at an undisclosed location. Given Judge Murphy’s view that the government had violated the preliminary injunction, he was strikingly willing to defer to the government’s needs in crafting a remedy—emphasizing again and again during the hearing the need to be as “restrained as possible,” even as the plaintiffs urged him to order the deportees’ return to the U.S. After consultation with DHS, Judge Murphy ordered the government to conduct reasonable fear interviews with the men, though he left it up to DHS whether to bring them back to the United States first or to host the interviews where they were or elsewhere abroad. The judge set out detailed instructions setting out exactly how the government must provide access to counsel over the phone and precisely how much time would be required for each step of the process. He also specified that the government must retain custody of the men—no handing them off to a foreign sovereign, as the administration previously did with the detainees in CECOT.

This “narrowly tailored” solution was apparently not enough for the government, which moved for Judge Murphy to reconsider or stay his “highly burdensome” orders—both the clarification of the preliminary injunction and the order regarding the men headed to South Sudan—and arguing that “the Orders impermissibly infringe on the President’s inherent Article II authority to conduct foreign affairs and serve as Commander-in-Chief” and that “Defendants are currently detaining dangerous criminals in a sensitive location without clear knowledge of when, how, or where this Court will tolerate their release.” (At this point, the White House had publicly acknowledged that the men were being held at a U.S. military base in Djibouti.) Judge Murphy denied the motion, quoting at length from the transcript of the hearing to emphasize that the government itself had asked for the relief that it was now decrying.

“The order is the narrow remedy Defendants requested,” the judge wrote. “In short, there is very little to stay, absent completely blessing Defendants’ violation.”

At this point, the government had already appealed the preliminary injunction to the U.S. Court of Appeals for the First Circuit, which had denied a stay. So the day after Judge Murphy’s denial, the Justice Department went straight to the Supreme Court to ask for a stay. Amid plenty of rhetoric about the “injunction’s pathologies” and complaints that Murphy had forced the government to take steps that the Justice Department itself had requested, the stay application set out a range of arguments as to why Murphy should not have been able to hear the case under a variety of jurisdiction-stripping provisions written into immigration law. Justice Ketanji Brown Jackson gave the plaintiffs a week to file their response. As of this writing, the case has been fully briefed for nearly two weeks without any decision from the Supreme Court.

In the meantime, the Justice Department has continued to file status reports mandated by Judge Murphy about the conditions of the deportees in Djibouti. In those, the government has complained that the men are being held in a dimly lit converted shipping container at Camp Lemonnier, where their health is at risk from extreme heat, smoke from nearby burn pits, and potential rocket attacks from Houthi forces in Yemen. The small group of ICE officers guarding them—according to the New York Times, the military informed DHS that it did not want the responsibility of caring for the deportees—is suffering from cramped quarters, illness, and a risk of malaria exposure. The ICE officers were not able to prepare for their arrival to Camp Lemonnier by taking the typical regimen of anti-malarial medication, given that they had no plans to remain there until Judge Murphy ruled. 

On X, DHS has continued to attack Judge Murphy for “putting the health and safety of law enforcement officers at risk,” although the administration is choosing to keep those officers in Camp Lemonnier rather than simply returning the deportees to the United States.

OCG

In addition to the men at Camp Lemonnier, at least one other class member remained abroad: OCG, the gay Guatemalan man now in hiding in his home country. OCG makes a brief appearance in the government’s application for a stay before the Supreme Court, which blandly states that he “was removed to Mexico … and has since gone to Guatemala” and describes “the circumstances of his removal” as “subject to ongoing proceedings below.” This does not entirely capture what took place. 

Recall that, according to the initial DVD complaint, OCG was deported to Mexico with little warning or chance to object. And it seems that he would have objected, because—as he stated in a sworn declaration—he had previously been raped and kidnapped in Mexico, with his kidnappers releasing him only after extorting a ransom fee from his sister. Once U.S. authorities deported him to Mexico, Mexican authorities informed him that he could apply for asylum there. But fearful of his safety there, OCG decided instead to return home to Guatemala. “I have been living in hiding,” he wrote in a second declaration filed in May, “in constant panic and constant fear. … I am the smallest version of myself.” He was afraid to leave the house or visit his mother, lest he place her life in danger from his harassers. Seeking to move him back to safety, his lawyers in DVD asked that Judge Murphy order his return to the United States.

Yet for weeks the Justice Department claimed that, before removing him to Mexico, ICE had asked OCG whether he was afraid of going there and that he “stated he was not afraid.” This would mean there was no legal issue with removing him, in the government’s view: He’d been offered a chance to object and had chosen not to. As Judge Murphy noted, though, this assertion by the government was hearsay: It came from a sworn declaration by an ICE officer who had not conducted the interview with OCG himself but only stated that ICE had done so. Given the dispute over whether or not OCG had been given the chance to voice fear of traveling to Mexico, Judge Murphy ordered discovery on the matter before ruling on whether to order OCG’s return.

It was at this point that the government’s version of events began to fall apart. According to a later filing by the plaintiffs, the government agreed to schedule a deposition for May 16 of the ICE officer who had asked OCG if he would be afraid of returning to Mexico. On the evening of May 15, however, the government abruptly canceled the deposition. The next day, the Justice Department filed a “Notice of Errata” informing Judge Murphy that the officer in question might not actually exist: “Upon further investigation, Defendants cannot identify any officer who asked O.C.G. whether he had a fear of return to Mexico. Nor can Defendants identify the officer who O.C.G. states ‘told [him] that he was being deported to Mexico.’” In other words, the government could not find an actual person to corroborate its story that OCG had “stated he was not afraid”—despite having represented to the court that such a conversation had occurred.

But there was another problem, too. The documents filed along with the Notice of Errata contained OCG’s full, unredacted name and his A-number—a unique identifier assigned to noncitizens by DHS. The identifying information was quickly removed from the docket after the plaintiffs alerted the judge, but as Judge Murphy wrote in a later ruling, the disclosure could have placed OCG and his family in serious danger.

Adding to the pile of discovery to be conducted, the judge ordered further discovery into just how DHS came to produce the false declaration. Judge Murphy would also go on to grant the plaintiffs’ motion for a preliminary injunction ordering OCG’s return. “Defendants apparently cannot find a witness to support their claim that O.C.G. ever said that he was unafraid of being sent to Mexico,” he wrote—making “inexorable the already-strong conclusion that O.C.G. is likely to succeed in showing that his removal lacked any semblance of due process.” The case, he noted, presented no particularly difficult facts or legal issues. It was simply a story of “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.”

With that in mind, Judge Murphy ordered the government to “facilitate” OCG’s return—using the same language adopted by courts ordering the return of other individuals wrongfully removed from the U.S. to El Salvador. In those cases, the government has not exactly been eager to comply, instead dragging its feet and bringing back Kilmar Abrego Garcia from CECOT only after months of delay and in connection with a criminal prosecution that was apparently initiated only after his removal to El Salvador. So observers could be forgiven for any surprise when the Justice Department quickly confirmed that it was working to bring OCG back—though the White House decried Judge Murphy’s order as the work of a “federal activist judge.” 

OCG returned to the U.S. a week later, the New York Times reported. According to his lawyer, Trina Realmuto, he is currently in immigration custody in Arizona. The government has presented him with a notice of removal to Mexico, the country where he was recently attacked, but has yet to conduct a reasonable fear interview. 

Malevolence Exacerbated by Incompetence 

The government’s sudden willingness to return OCG reflects the dynamic driving the compounding crises of DVD. At least within the four walls of the courtroom, the Trump administration does not want to present itself as outright defying a judge’s orders. Instead, it will invent increasingly convoluted and often bizarre justifications for why apparently defiant actions are actually permissible, to the point where, when it complies—as it did with OCG’s return—this feels like something shocking and notable, instead of exactly what one would expect. This is the collapse of the presumption of regularity, the assumption that the executive branch can be trusted to act in good faith.

In DVD, this strategy by the government has taken a variety of forms. Often, it has involved legal arguments that run the gamut from creative to obviously specious—like the suggestion that because the Defense Department was not named as a party, there was no restriction on the Pentagon removing class members on its own. It has also depended on factual obfuscations. Can it really be possible, for example, that the military decided entirely independently to transport groups of Venezuelan men from Guantanamo to El Salvador, without any coordination with DHS?

Sometimes, that evasiveness appears deliberate. Government lawyers appear in court either unwilling or unable to elucidate their client’s actions, such as when attorneys for the Justice Department and DHS could not tell Judge Murphy either the current location of the flight to South Sudan or the legal basis on which that information had been classified. At multiple points in DVD, the government appeared to engineer legal uncertainty by declining opportunities to “meaningfully engag[e] in a discussion about what process” should be required for class members, as Judge Murphy wrote. The longer that ambiguity persisted over exactly how much time class members must receive to object to their removal, the more wiggle room the government could claim in spiriting them quickly out of the country. “It is hard to come to any conclusion other than that Defendants invite lack of clarity as a means of evasion,” Murphy wrote later.

Sometimes, though, the confusion may be a result of genuine disarray, in this instance resulting from the administration’s efforts to move quickly to deport as many people as possible before a court steps in to stop it. The discovery that OCG had not actually been asked whether he feared removal to Mexico—along with the government’s delayed realization that the Burmese man, N.M., was actually “in possession of a travel document” allowing his return to Myanmar, meaning there was no reason to send him to Libya or South Sudan—may fall into this category. These individual acts of confusion may not be engineered but are predictable outcomes of a policy focusing on scale and speed of deportations over legal compliance. 

As the saying goes, hypocrisy is the tribute that vice pays to virtue. The same might be said of the Trump administration’s mode of legalistic noncompliance. There is clearly some level of recognition on the Justice Department’s part that outright defying a court order would, to put it simply, look bad—and, maybe more to the point, could place in jeopardy the ability of these attorneys to continue to practice in front of the court. This recognition appears to be more strategic than reflective of a genuine commitment to the rule of law, but it provides judges and litigants with potentially important leverage, because there are depths to which the government does not yet seem fully willing to plumb. The flight to Libya never took off. The men in Djibouti were not moved to South Sudan after Judge Murphy stepped in. OCG was returned to the United States after the government acknowledged that it had misled the court on the circumstances of his removal. 

This can make it somewhat difficult to discern why the Trump administration chooses to push the boundaries of compliance in some instances but not others. Why, for example, did the government move with relative speed to facilitate OCG’s return but dragged its feet for weeks in the case of Kilmar Abrego Garcia? One possibility is that OCG’s case was less high-profile and so returning him appeared to be less of a public concession. Another, not mutually exclusive possibility is that the Justice Department was in a weaker position regarding OCG: As Judge Murphy noted in his order, OCG was not being held by a foreign government like Abrego Garcia was, and so there were fewer arguments available to justify a failure to engineer his return. Or perhaps the administration did not want to imperil its stay application before the Supreme Court by queueing up a dispute before the justices about how the government had stranded yet another person abroad.

Judge Murphy’s changing responses to the government’s brinkmanship are a window into how the courts have adapted to these strategies by the administration. Over the course of the litigation, the judge’s orders have become more and more specific, sometimes excruciatingly so—moving from more general, deferential overviews in their earlier iterations to increasingly precise lists of exactly what is required for each step of the process in question, minimizing the administration’s wiggle room. To pin the government down on the facts, the judge has ordered discovery on various issues and at one point ordered that representatives from DHS be sworn in at the beginning of a hearing so that Murphy could ask them questions. 

The judge has also wielded the threat of contempt. After clarifying his preliminary injunction following the South Sudan crisis, Judge Murphy ordered that an attorney of record in the case provide a sworn declaration that “all persons in the removal process” had been provided with notice of the clarified injunction and that “all individuals potentially involved in any removal that may implicate this order have been told that failure to comply with the terms of the preliminary injunction may subject them to civil or criminal contempt.” If the government tried a similar gambit again, in other words, everyone from the ICE officers at the detention center to the pilot flying the plane could be on the hook for anything from fines to jail time. “This is the only way to ensure that everyone is following the preliminary injunction,” Judge Murphy commented during the hearing. (Ensign provided the required declaration.)

DVD is not the most high-profile or egregious example of the Trump administration’s questionable compliance with court orders. That honor likely goes to the Alien Enemies Act cases and the case of Kilmar Abrego Garcia. But precisely because it is less exceptional and more humdrum, it is a representative glimpse into what Judge Murphy termed the “banal horror” of the government’s approach to both litigation and immigration enforcement.

As of now, the government’s stay application is still pending before the Supreme Court. Briefing is ongoing on the separate stay motion before the First Circuit. In the district court, Judge Murphy is still considering whether to add the Defense Department as a defendant; discovery is ongoing concerning the false declaration filed about OCG. The men flown to Djibouti remain detained there in a shipping container. As of June 4, class counsel had yet to hear from them.