Judge rules DHS violated court order in deporting 8 migrants to South Sudan

(WASHINGTON) -- A federal judge in Boston ruled Wednesday that the Trump administration's deportations of eight men convicted of violent crimes to South Sudan was "unquestionably violative of this Court's order" by not giving them adequate due process, including a "meaningful opportunity to object."

The rebuke came after his order earlier this week that the Department of Homeland Security maintain custody of the migrants.

But Judge Brian Murphy, of the U.S. District Court for the District of Massachusetts, declined to issue an order to return the plane with the deportees to the United States, as the plaintiffs had requested.

The judge appeared willing to take the DHS at its word that it would be possible for the government to conduct interviews with the detainees to determine if they have a reasonable or credible fear of being deported to South Sudan, where they are now.

An attorney for the deported men, protested that, under the circumstances, it would be a "legal and logistical nightmare" for the detained men to get access to counsel and to obtain the information they need to present a challenge.

"I have some serious confidentiality, privacy concerns about where this reasonable fear interview is going to take place. Who is going to conduct this reasonable fear interview, but most importantly, how are they going to have access to counsel, which they are entitled to have in order to discuss the reasonable fear process? How are they going to investigate and learn about the conditions in South Sudan? How are they going to present evidence that they have a reasonable fear," Trina Realmuto, the executive director of the National Immigration Litigation Alliance, said in court on Wednesday.

Realmuto also raised concerns about finding interpreters and conducting interviews with U.S. Citizenship and Immigration Services personnel remotely across multiple time zones.

Murphy had issued an order on Tuesday directing the government to maintain custody of anyone covered by his preliminary injunction who is in the process of being removed to South Sudan or any other country "to ensure the practical feasibility of return if the Court finds that such removals were unlawful."

"It was impossible for these people to have a meaningful opportunity to object to their transfer to South Sudan in that time frame," he said Wednesday, arguing that due process was not possible since the migrants received their notices of removal on the evening of May 19 and then were taken out of the detention facility the next morning.

"Based on what I've learned, I don't see how anybody could say that these individuals had a meaningful opportunity to object," Murphy said. "If I was in any of those groups and I was going to be deported to South Sudan, I would need an opportunity to investigate that and to be able to articulate a well-founded fear about why being returned to South Sudan would be would result in torture or death. The department did not do it. In this case, they did not offer any opportunity to object."

DHS confirmed the eight migrants were placed on a deportation flight from Texas headed to war-torn South Sudan on Monday, officials said ahead of the hearing, though they cautioned this would not be the migrants' final destination.

Counsel for the plaintiffs spoke to reporters outside of the courthouse saying South Sudan is a country to which the State Department advises Americans not to travel.

"They are categorically not safe. They are places where our class members are not safe, and they are not being afforded an opportunity to consult with counsel and to make an informed choice about the fear that they have of being deported to those countries," Realmuto told reporters.

Attorneys also said they have concerns for over the conditions the migrants, who continue to be held on a tarmac, are experiencing.

"Nobody is able to consult with them from where they are at the moment, and that includes counsel for the one person who actually had counsel at the time of his removal," Anwen Hughes, director of legal strategy at Human Rights First, told reporters Wednesday after the hearing.

Murphy indicated he will issue an order at some point Wednesday evening spelling out the specific requirements for how the reasonable fear interviews will take place where the detainees are currently located.

He indicated that the U.S. government was to maintain custody of the deportees and not transfer them to the custody of another entity or government, and he said he wanted the interviews to take place in an "appropriate place with an appropriate degree of privacy," even if that means "renting a room at a Holiday Inn."

Murphy said that if, at any point, the government determines it would rather bring the plane back to the U.S., it remains free to do that.

Before the close of the hearing, the government asked that whatever remedy is ordered by Murphy, he stay the order pending an appeal, and Murphy said he would consider that request as he crafts the order.

Ahead of the hearing, DHS held a news conference in Boston on the deportations in which Assistant Homeland Security Secretary Tricia McLaughlin told reporters that "no country on earth wanted to accept them because their crimes are so uniquely monstrous and barbaric."

"A local judge in Massachusetts is trying to force the United States to bring back these uniquely barbaric monsters who present a clear and present threat to the safety of the American people and American victims," McLaughlin said. "While we are fully compliant with the law and court orders, it is absolutely absurd for a district judge to try and to dictate the foreign policy and national security of the United States of America."

When asked where the eight men are, McLaughlin said she couldn't "disclose where their current whereabouts are right now" but that they were still in DHS custody. Officials declined to identify their final destination, citing security concerns.

"I would caution you to make the assumption that their final destination is South Sudan. As far as that agreement goes, I would definitely refer you to the State Department's more specifics," she added.

Officials said the men's countries of origin refused to accept them, so DHS in partnership with the State Department found a country that would accept them through a "safe third-country agreement."

"I can say that their home countries refuse to take these individuals back," acting U.S. Immigration and Customs Enforcement Director Todd Lyons said.

"ICE detention isn't punitive. We detain and remove after six months or 180 days. If we don't have a country that'll take their citizens back, we do have an option to find a safe third country," Lyons said.

However, McLaughlin argued to reporters that the eight migrants were given due process.

"We are following due process under the U.S. Constitution. These individuals have been given and their lawyers have been given plenty of prior notice. As far as those actual agreements, we can get back to you with more information from the State Department," she said.

Murphy said the violation will now need to be remedied.

In response, Realmuto argued during the court hearing that the plane should be returned to the U.S. and the men should be afforded the due process that she said "can only take place on U.S. soil."

Drew Ensign, an attorney for the Department of Justice, asked the court to fashion as narrow a remedy as possible and suggested that an option is for the due process required by the injunction to take place without bringing the plane back to the U.S. However, Ensign could not immediately answer Murphy's question about whether that is possible.

ICE released names and other details regarding those deported on Wednesday. Several were convicted of first-degree and second-degree murder.

Kyaw Mya, a citizen of Burma, was convicted of lascivious acts with a child-victim less than 12 years of age. Nyo Myint, a citizen of Burma, was convicted of first-degree sexual assault involving a victim mentally and physically incapable of resisting.

Another was convicted of robbery, possession of a firearm and driving under the influence.

ABC News' Ely Brown contributed to this report.

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