“I’m not happy about this at all,” the judge continued. “This is not acceptable.”
Attorneys for the civil rights organization and the Justice Department had agreed to delay removal proceedings for Carmen and her child until 11:59 p.m. Thursday so they could argue the matter in court.
But lead ACLU attorney Jennifer Chang Newell, who was participating in the court hearing via phone from her office in California, received an email during the hearing that said the mother and daughter were being deported.
During a brief recess, she told her colleagues the pair had been taken from a family detention center in Dilley, Tex., to the airport in San Antonio for a morning flight.
After being informed of the situation, Sullivan granted the ACLU’s request to delay deportations for Carmen and the other plaintiffs until the lawsuit is decided, and ordered the government to “turn the plane around.”
Justice Department attorney Erez Reuveni said he had not been told the deportation was happening that morning and could not confirm the whereabouts of Carmen and her daughter.
The ACLU said later that government attorneys informed them after the hearing that the pair was on a flight to El Salvador.
A spokeswoman for U.S. Customs and Immigration Enforcement, which implements deportations, did not respond to questions about why Carmen and her daughter were removed from the country.
“In compliance with the court’s order, upon arrival in El Salvador, the plaintiffs did not disembark and were promptly returned to the United States,” a U.S. Department of Homeland Security official said Thursday evening.
Eunice Lee, who is co-counsel for the plaintiffs in the case and co-legal director at the University of California at Hastings’s Center for Gender and Refugee Studies, said: “It must have been absolutely terrifying for them to think they would be returning to a country where they raised very credible claims of persecution and death. It’s outrageous to me that while we were working around the clock, filing briefings for this case’s early morning hearing, that people in the government were actively arranging for Carmen’s deportation.”
The Justice Department declined a request for comment.
To qualify for asylum, migrants must show that they have a fear of persecution in their native country based on their race, religion, nationality, political opinion or membership in a “particular social group,” a category that in the past has included victims of domestic violence and other abuse.
Carmen fled El Salvador with her daughter in June, according to court records, fearing they would be killed by gang members who had demanded she pay them each month or suffer consequences. Several co-workers at the factory where Carmen worked had been murdered, and her husband is also abusive, the records state.
Under the fast-track removal system, created in 1996, asylum seekers are interviewed to determine whether they have a “credible fear” of returning home. Those who pass get a full hearing in immigration court.
“The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” Sessions wrote at the time.
The ACLU lawsuit was filed on behalf of 12 migrants from Honduras, El Salvador and Guatemala — three of them children — all of whom failed their initial “credible fear” interviews.
The lawsuit says Sessions’s ruling, and updated guidelines for asylum officers that the Department of Homeland Security issued a month later, subject migrants in expedited removal proceedings to an “unlawful screening standard” that deprives them of their rights under federal law.
Asylum seekers previously had to show that the government in their native country was “unable or unwilling” to protect them. But now they have to show that the government “condones” the violence or “is completely helpless” to protect them, the lawsuit says.
Maria Sacchetti contributed to this report.