A divided panel of the US Court of Appeals for the DC Circuit on Friday shut down a district court’s move to allow criminal-contempt prosecutions of federal officials involved in the rapid removal of suspected Tren de Aragua members this spring, granting the government’s petition for a writ of mandamus and vacating the lower court’s probable-cause order.
The DC Circuit dismissed the government’s interlocutory appeal for lack of jurisdiction. Judges Gregory Katsas and Neomi Rao concluded the extraordinary remedy of mandamus was warranted and ordered the district court’s probable-cause finding wiped away, but Judge Cornelia Pillard dissented from the mandamus grant.
The panel held that it lacked appellate jurisdiction to review the district court’s April 16 order at this stage. Even so, the majority said mandamus was appropriate because the temporary restraining order (TRO) at the heart of the contempt dispute was too ambiguous to support criminal contempt and because the district court improperly used the threat of contempt “to coerce” executive branch action after the US Supreme Court had already vacated the TRO. The court therefore vacated the district court’s probable-cause order.
On March 15, after President Donald Trump issued a proclamation invoking the Alien Enemies Act (AEA) against Venezuelan nationals alleged to belong to Tren de Aragua, the district court certified a provisional class and entered a TRO preventing removal under the proclamation. By then, two planes carrying more than 100 detainees had departed South Texas; they later stopped in Honduras and continued to El Salvador, where Salvadoran forces took custody and transferred the group to the CECOT prison. While the appellate motions were pending, El Salvador released the group in a prisoner exchange and transferred them to Venezuela, according to the record recited by the court.
The AEA proclamation was signed on March 14 and published on March 20. Weeks earlier, the State Department had designated Tren de Aragua a foreign terrorist organization.
Writing separately, Judge Katsas framed the case as an “extraordinary, ongoing confrontation” between branches. He added, however, that the contempt theory ultimately turned on what the TRO barred: did “removing” mean leaving US territory, or surrendering custody to a foreign sovereign? Since criminal contempt requires a clear order, he concluded any ambiguity had to be resolved in favor of the government. The written minute order, ordinary usage, and statutory context supported a territorial reading, he said. On that view, flights had already left US airspace before the TRO was issued, and later custody transfer in El Salvador could not sustain criminal contempt.
Judge Rao agreed that mandamus was necessary for a different reason: once the Supreme Court vacated the TRO, the district court could not indirectly “coerce compliance” with that vacated order by dangling criminal contempt unless officials asserted custody over detainees abroad. She warned that forcing the executive to pursue custody through diplomacy intruded on foreign affairs prerogatives. Her opinion pointed to the court’s recent reminder that a stayed or vacated injunction cannot be enforced through contempt.
Judge Pillard dissented, writing that she would have denied mandamus and let the district court’s process continue. She emphasized that courts must be able to identify officials who knowingly disobey orders and stressed the order at issue merely required the government to name decision-makers or, alternatively, propose steps to mitigate harm to detainees’ ability to seek habeas review. In her view, the TRO was not ambiguous when read in the context of the emergency hearing, where the judge directed that detainees “in the air” be returned and not deplaned abroad. Any ambiguity arguments, she said, belong in a later contempt proceeding, not via extraordinary writ.
Friday’s decision vacates the probable-cause finding and, at least for now, halts the district court’s contemplated contempt inquiry. Separate litigation over the AEA proclamation and due-process rights for those still in US custody continues in the districts of confinement and at the Supreme Court, which has already intervened to preserve access to habeas review for putative classes of detainees.
