Not all heroes wear judges’ robes, but Judge Sparkle Sooknanan of the US District Court of the District of Columbia certainly does. When Homeland Security goons snatched hundreds of immigrant children from foster homes and shelters in the middle of the night and loaded them onto planes bound for Guatemala early Sunday, Judge Sooknanan did everything necessary to make sure not one of the planes took off. She demanded five status reports from the government while she handled attorneys’ emergency request to keep the kids in the US, and didn’t rest until the kids were all off the planes and back under the custody of HHS’s Office of Refugee Resettlement (ORR). That’s where they belong while their immigration cases move forward, with due process for all, and to all a good night.
Wonkette alum Our Liz Dye has the full account over at Public Notice, and it’s a jaw-dropper. As she says, “It was a remarkable display of judicial tenacity. It was also a testament to how thoroughly the Justice Department has shredded its credibility with the courts in just eight months.”
Here’s the background info you need first: DHS had no business trying to hustle those kids out of the country at all, not without a hearing for each of them. Minors who cross the border without a parent, as all these kids had, are protected from being arbitrarily deported by the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), which also requires they be housed in the “least restrictive environment” where they can be safe. Instead of being imprisoned by DHS, minors are placed in foster homes and group care shelters run by nonprofits, with their care supervised by ORR.
Donald Trump just hates that dumb law because it doesn’t let him jail children forever or deport them with a phone call. And it seems DHS decided that the holiday weekend would be a great time to seize a few hundred Guatemalan minors and deport them, completely ignoring their due process rights, under the pretext that their parents, or at least the Guatemalan government, wanted them back, so TVPRA didn’t matter. That is of course some bullshit.
Sooknanan, who we’re sure has long grown tired of being told that every request in her court is a Sparkle Motion, was on duty for hearing emergency claims over the long weekend when lawyers for 10 undocumented kids from Guatemala filed for a temporary restraining order at 1 freaking a.m. Sunday morning, requesting she block DHS from deporting the kids.
A few hours earlier, late Saturday night, DHS sent the 10 kids’ guardians a nice email ordering that they have the kids ready for “discharge” from ORR to ICE in two to four hours. In typically dehumanizing bureaucratic language, the email advised that the UACs (unaccompanied alien children) be packed up with all their personal alien identification and alien belongings (one alien suitcase, no more than 40 of your Earth pounds) and any alien prescriptions the UAC might need for 30 days, plus “two prepared sack lunches (nut free)” for the UAC to consume on the plane.
It was remarkably thoughtful of DHS to at least send the notices out at 10:45 p.m. Saturday instead of just breaking down some doors, wasn’t it? Yes it was, do not try their patience or they may have to hurt you for your own good.
It turns out that children don’t respond especially well to being rousted out of bed in the middle of the night, as Lauren Flores, the legal director of the South Texas Pro Bono Asylum Representation Project (ProBAR), testified in an affidavit for the court. Flores wrote that her organization knew something was up, and that children in several South Texas shelters were likely to be “repatriated” to Guatemala. On Saturday, ProBAR advised shelter directors and ORR officials of the kids’ rights under TVPRA, reminding them that the child and their lawyers must have 48 hours notice — not two to four — of any transfer or “discharge.”
Then the phone calls from shelters started coming in, not long before midnight Texas time, Flores said.
At all of the shelters visited in the middle of the night, ProBAR staff witnessed children who had been pulled out of their beds. They were confused and scared. At Hands of Healing Los Fresnos, one young girl was extremely distraught, crying and repeatedly saying that she could not go back to Guatemala. At New Hope McAllen, one young girl was so scared that she vomited and asked to speak with a clinician.
Another young teenager was terrified that if he was returned to Guatemala, he’d be murdered, like a member of his family had been. And of course, not one of the 10 kids’ parents in Guatemala had requested their return.
Meanwhile, back in Washington, Judge Sooknanan got to work and issued an order barring the deportation of the 10 kids named in the motion. She also scheduled a hearing for later on Sunday to consider all Guatemalan minors protected by the TVPRA as a class.
When lawyers advised Sooknanan that kids were being put on planes early Sunday, she immediately issued a “preliminary class certification” to prohibit any Guatemalan kids from being deported, and then she made damn sure the government followed it.
Good thing, too, because DHS was trying the same end run it pulled months ago when it ignored an order from DC Chief Judge James Boasberg telling the government to stop any flights taking prisoners to the hell prison in El Salvador. Instead, the planes took off (two of them after the order was given), DHS laughed at Boasberg because the planes were already in the air, and we all know how THAT fuckery ended up.
As Flores testified, by 3:45 a.m. Central, ProBAR notified the shelter directors in Texas of the class action determination and the order saying no Guatemalan kids were to be removed from the shelters. Fat lot of good it did, since Flores woke up to “a flurry of messages and emails on Sunday morning. I learned that children, including ProBAR’s clients, had been removed from the shelter facilities and were believed to be already on an ICE-contracted transport plane at the Harlingen airport.”
She hurried to the airport, saw two planes on the tarmac, their doors shut and the stairs pulled away. She went to the ICE office, knocked, and told a young ICE shithead that she was an attorney and a judge had ordered that no children be deported, no planes take off.
“I asked to speak to his supervisor. I gave the same message to every person who badged in the locked door. I told them they were all complicit in violating a federal court order if the plane left. The young man came back out and told me that he had advised his supervisor who was trying to contact ICE. I explained again the federal court order and the importance of stopping the plane. Another agent came out and physically pulled the young man back into the building. I could see the other staff members through the glass. They were jeering and laughing. I repeated that they were all complicit in the violation of the judge’s order.”
Haw haw, try stopping a jet with a piece of paper, what a dumb lawyer lady!
While Flores was watching the plane on the ground, Sooknanan was holding an expedited hearing in her DC courtroom.
As it turns out, the government was represented by Deputy Attorney General Drew Ensign, the same shithead who months before had assured Judge Boasberg that he would communicate to the government Boasberg’s order to hold those planes on the ground, which the government then ignored. Ensign told Boasberg he didn’t know whether any planes had taken off, and Boasberg paused the hearing so Ensign could go do that.
Instead, as we later found out via whistleblower Erez Reuveni, the DOJ was already following Emil Bove’s instructions to say “fuck you” to any judicial orders that might halt deportations. Reuveni’s report also alleged that Ensign knew full well that deportation flights were happening, and lied to Judge Boasberg.
So yeah, when Ensign told Judge Sooknanan that he didn’t know if children were on planes about to take off, she didn’t simply take his word for it. She paused the hearing several times to make certain he informed DHS that the planes must stay on the ground, and got each back-and-forth on the court record so that if the planes left, there’d be clear evidence for contempt charges and, hey, how about a disbarment, not that she even had to be explicit.
This time, instead of claiming the kids were enemies at war with the US, Ensign claimed that
the government was simply reuniting children with their parents in a plan that had been negotiated for months with the Guatemalan government. He did not explain why this plan necessitated snatching these children out of foster care in the middle of the night on a holiday weekend without prior notice to their counsel or guardians.
Nothing in the law allowed the feds to short-circuit the kids’ due process rights, not even if there had been negotiations with Guatemala. You can’t just throw out the Constitution by muttering “foreign policy.” The TVPRA is really clear on that: Unaccompanied immigrant kids can’t be deported without a hearing, not even if the government claims broadly that their parents want them returned. (They didn’t.)
After ordering that the planes not leave the ground, Sooknanan didn’t just take Ensign’s word that he’d pass the message along. As we saw in Flores’s statement about what she saw going on at the airport, the DHS goons certainly acted as if they could just send the planes and worry about the legal details later.
Sooknanan didn’t give them the chance.
She ordered the government to provide status updates at 4pm, 6:30pm, 8:30pm, 10:45pm on Sunday, and then another at noon on Monday. And Flores’s testimony demonstrates that if Judge Sooknanan hadn’t forced Ensign to call DHS right then and there, ICE would have illegally renditioned those kids.
Instead, as Flores testified, the judge’s vigilance worked. First the one plane turned back from the runway and parked, and finally, after two hours, the kids were finally allowed to get off the planes. By Monday morning, Sooknanan had confirmed that all the kids were back in the care of ORR.
And now the case will move forward; unfortunately, since Sooknanan was only on weekend duty, the case will now be handled by another judge who was assigned at random to the case, “Judge Timothy Kelly, a Trump appointee who has sometimes (but not always) been deferential to the administration’s sweeping claims of executive power.” A similar case in Illinois, handled with similar diligence over the weekend by Judge Georgia Alexakis, is also moving forward, though it’s against HHS, since the kids remained in ORR care without ICE trying to nab them and put them on planes in the middle of the night.
We’ll just go with Liz’s summation, because it’s damn good.
But whatever happens now, it won’t happen under cover of darkness. DHS will have to make its case in court that it is entitled to deport these children without process, against the wishes of their own parents, and in apparent contravention of TVPRA. And that is thanks to Judges Sooknanan and Alexakis, who picked up the phone in the middle of the night and issued emergency relief — and then kept on issuing it to ensure that the government didn’t ignore court orders the way it did in March.
And that, children, is our lesson here. Courts still matter. The rule of law still matters, and it very much mattered for the children who are still in the US, not Guatemala, as their asylum cases move forward. That’s not a trivial matter, it’s a win.
Even if the Supreme Court eventually decides to let Trump’s DHS get away with this, every check on President Stephen Miller’s power from lower courts slows the advance of the fascism machine, and builds a record that the complicit high court may still ultimately ignore — but at even greater cost to its credibility. Will that be enough to make John Roberts and the justices not named Alito or Thomas think twice before tearing down the law? Stay tuned and keep fighting.
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