President Donald Trump speaks after signing an executive order in the Oval Office of the White House, Monday, Feb. 3, 2025, in Washington. (AP Photo/Evan Vucci)
Attorneys for a Guatemalan man who was “unlawfully deported” to Mexico have filed an emergency motion for injunctive relief — asking that the Trump administration be ordered to “immediately facilitate his return” — after the government admitted Friday that it made “an error” and “misrepresentations” to a federal court regarding his removal, the lawyers say.
The man, identified in court documents as O.C.G., fled Guatemala after being “persecuted and threatened with death on account of his sexual orientation,” according to his legal team, and he was detained upon entering the United States in March 2024. An immigration judge allegedly granted him withholding of removal after a hearing, and the Department of Homeland Security (DHS) did not appeal the decision.
“Instead, two days later, DHS officers with the Enforcement and Removal Operations (ERO) division of U.S. Customs and Immigration Enforcement (ICE) deported him to Mexico without prior notice to him or his immigration counsel,” his lawyers allege in a memorandum supporting their motion, both filed May 18 in the District of Massachusetts.
“Defendants did this even though O.C.G. had testified that he had been targeted and raped in Mexico,” the lawyers say.
The filing stems from a class-action lawsuit brought by immigration advocates after DHS issued new guidance authorizing the removal of certain noncitizens to “third countries” not named in their immigration proceedings, and with which they allegedly have no historical or legal ties. The plaintiffs, which include O.C.G., argue that the policy violates the due process clause of the Fifth Amendment, as well as obligations under the Convention Against Torture human rights treaty.
On Friday, the Justice Department filed a “notice of errata” saying it made “an error” in a March 25 declaration of Brian Ortega, assistant field office director for ICE’s Enforcement and Removal Operations, related to O.C.G’s removal. Ortega reported that ICE had “verbally asked O.C.G. if he was afraid of being returned to Mexico,” and that at the time O.C.G. “stated he was not afraid of returning to Mexico.” The filing noted how the government has “relied on this declaration to make corresponding statements to the court” regarding O.C.G.’s removal from the United States, and that an error with a “software tool” known as ICE’s “ENFORCE alien removal module” led to the mistake.
“Upon further investigation, defendants cannot identify any officer who asked O.C.G. whether he had a fear of return to Mexico,” the notice said. “Nor can Defendants identify the officer.”
O.C.G.’s lawyers say he left Mexico and has been “hiding in Guatemala” for roughly three months since the date of his “unlawful removal.” They believe he is entitled to immediate relief on account of the government’s admitted missteps, noting how it’s allegedly still doing nothing to bring O.C.G. back to the U.S.
“Despite defendants now acknowledging that they made misrepresentations to the Court regarding the notice provided to him and regarding his alleged statement that he had no fear of being removed to Mexico, defendants have refused to commit to immediately facilitate his return,” the attorneys say in their Sunday memorandum. They also condemn the government for allegedly revealing his identity on the public docket recently in violation of a previous court order requiring the use of a pseudonym, which they say has caused him irreparable harm as well.
“Defendants’ unlawful deportation of Plaintiff O.C.G. to Mexico without notice or an opportunity to present his fear claim to that country placed him in serious danger of irreparable harm before that harm was compounded by the disclosure of his identity,” the lawyers charge.
U.S. District Judge Brian Murphy, a Joe Biden appointee, previously barred the government from moving forward with “third country” deportations in a sharply worded 48-page memorandum and order on April 18. “This case presents a simple question,” Murphy said. “Before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there?”
The Boston-based judge issued a temporary restraining order in March barring deportations to third countries without a judge signing off on such measures, presupposing that the government had likely already, or likely would, run afoul of its obligations.
The 1st Circuit Court of Appeals on Friday declined to lift Murphy’s April 18 injunction, denying an emergency motion from the government for a stay in a two-page order. The three-judge panel determined that DHS failed to satisfy the criteria required for such relief, noting how the court has “concerns,” according to the order.
“In particular, we have concerns regarding … the defendants’ filing of a ‘provisional’ stay motion three days before the injunction was entered; the irreparable harm that will result from wrongful removals in this context; the equities of stay relief; and certain merits-related issues that the parties are instructed to address in their briefs,” the court said.
Colin Kalmbacher contributed to this report.
