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The Trump administration “unquestionably” violated a court order when it tried to transfer detainees to war-torn South Sudan without a meaningful opportunity to contest their removal to a place where they might face torture, a federal judge said Wednesday. Eight detainees of various nationalities were placed on a flight early Tuesday, the judge, Brian Murphy of the District of Massachusetts, said at a court hearing. Attorneys representing the detainees have said it was destined for South Sudan. “It was impossible for these people to have a meaningful opportunity to object to their transfer to South Sudan,” Murphy said, citing the truncated timeline and the fact that much of what occurred happened after business hours, when the detainees couldn’t reach lawyers or their families. The “Department’s actions in this case were unquestionably in violation of this court’s order,” Murphy said. The 17-hour window the detainees had before they were put on the plane Tuesday was “plainly” and “undeniably” insufficient, the judge added. Homeland Security officials haven’t shared the whereabouts of the flight since it took off. During the hearing, an Immigration and Customs Enforcement official told the judge the detainees were currently “sitting on a plane.” Later Wednesday, Murphy said in a two-page order that administration officials must give the migrants on the plane a “reasonable fear interview,” the first step toward raising a fear-based claim against being deported somewhere other than their home country. That interview, he said, could also be conducted in the US if officials decided to fly the migrants back. Regardless of the location of the interview, Murphy said, officials must give the migrants “no fewer than 72-hours’ notice of the scheduled time” of their interview. Migrants who are not found to have a “reasonable fear” would then get 15 days to try to reopen their immigration cases so they can challenge their removal to a third country, the judge said in his order. “During that 15-day period, the individual must remain within the custody or control of DHS, and must be afforded access to counsel that is commensurate with the access they would be afforded if they were seeking to move to reopen from within the United States’ borders,” Murphy wrote. DHS officials didn’t confirm the flight’s destination during a news conference earlier Wednesday. Yet Immigration and Customs Enforcement posted a livestream online of the news conference, labeling it: “DHS Press Conference on Migrant Flight to South Sudan.” Murphy said during the hearing on Wednesday he could consider holding administration officials in criminal contempt for violating his earlier order. The judge is also looking at whether administration officials have misrepresented facts to the court, in the case of at least one of the migrants, a potentially very serious accusation. At its news conference, the DHS distributed a list of the eight individuals with criminal records who were on the flight, including migrants from Cuba, Laos and Mexico. The list also included two men, one from Vietnam and one from Myanmar, who are part of the litigation. The officials added that the detainees were still in the US government’s custody, per the judge’s earlier order. “Because of safety and operational security, we cannot tell you what the final destination for these individuals will be,” said DHS spokesperson Tricia McLaughlin. “A local judge in Massachusetts is trying to force the United States to bring back these uniquely barbaric monsters,” she said. Murphy previously told the Trump administration they were blocked from sending detainees to countries that weren’t their own until they were provided proper notice and an opportunity to contest their removal. Murphy didn’t, however, specify how the Department of Homeland Security should have given the detainees a meaningful way to challenge being deported, because he hadn’t wanted to “inject myself into the day-to-day operations of the Department,” he said on Wednesday. The administration has maintained they had given due process to the detainees and that the court should stay out of their aggressive immigration efforts. “We believe that the individuals had an opportunity,” a Justice Department attorney said at the hearing Wednesday. “They couldn’t have called their attorneys if they wanted to,” Murphy responded. This story has been updated with additional details.
