- The DOJ says it has no custody or control over 137 Venezuelan men removed to El Salvador.
- The D.C. Circuit heard arguments September twenty-fifth, twenty twenty-six, over an order requiring the government to facilitate their return.
- The men challenge their gang-member designations and seek due process hearings after removal under the Alien Enemies Act.
The DOJ told the D.C. Circuit that the United States has no custody or control over 137 Venezuelan men sent to El Salvador, arguing that a court cannot order their return or require U.S. hearings. The men were held at CECOT prison after removal from the United States.
The appeals court heard arguments on September 25, 2026. The judges appeared divided over whether to uphold an order requiring the government to facilitate the men’s return.
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Justice Department attorney Tiberius Davis said the United States no longer had “sole custody” over the group. The men had since been released from the prison, and some were in Venezuela, he argued.
The dispute is about what relief a court can order. The government says its lack of control over the men abroad prevents the court from compelling their return or arranging hearings in the United States.
The men challenge the designations behind their removal
The men were removed in March 2025, after President Donald Trump invoked the Alien Enemies Act of 1798, 50 U.S.C. § 21. The administration designated them as members of Tren de Aragua, a Venezuelan gang.
The plaintiffs say they should receive due process hearings to contest those designations and the removals that followed. Their challenge puts the accuracy of the gang labels and access to a hearing at the center of the dispute.
The case raises a question about the reach of court-ordered relief after noncitizens leave U.S. territory and enter another country’s custody. The government relies on the men’s current circumstances abroad; the plaintiffs seek a chance to dispute the basis for sending them there.
Those questions arise in litigation over removals carried out under an emergency statute. The legal dispute includes whether people identified as gang members received a meaningful opportunity to challenge that identification before removal, and whether a U.S. court can order a remedy after the government says it no longer controls them.
Boasberg ordered the government to facilitate their return
The appeal, J.G.G. v. Trump, challenges an order issued in February 2026 by Chief U.S. District Judge James E. Boasberg. He directed the government to facilitate the men’s return after they had been designated as gang members and removed under the Alien Enemies Act.
Boasberg’s order supplied a remedy at the district-court level. The appellate judges must consider whether that order exceeded the court’s authority, as well as the government’s argument that it cannot carry out a return when it lacks control over the men.
The panel’s ruling will address that appeal. The arguments focused on the connection between the alleged unlawful removals and the government’s present ability to provide relief.
A separate contempt case turns on the halted removal flights
The same litigation also has a separate en banc contempt proceeding set for September 29, 2026. That matter concerns alleged defiance of Boasberg’s temporary restraining order, which had halted removal flights.
The contempt question is whether executive officials willfully violated the earlier order. It is distinct from the appeal over whether the men can obtain a return order or hearings in the United States.
Rulings by the appeals court bind within its circuit unless changed by the full court or the Supreme Court. Outside the circuit, a ruling could carry persuasive weight if other courts choose to adopt its reasoning.
This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
