Judge transfers new case challenging South Sudan deportations

An administrative stay issued Friday morning will last until 4:30 p.m. Further action would have to come from Massachusetts. Read the new claims at Law Dork.

After a hearing on Friday, U.S. District Judge Randolph Moss transferred a new case filed Thursday night to protect the eight men the U.S. wants to send to South Sudan to the federal court in Massachusetts where a related case has been pending.

On Friday morning, Moss had issued an administrative stay blocking the Trump admin from "moving, transferring, or removing from U.S. custody" the eight men while his stay remains in effect.

At the hearing’s conclusion a little after 3:00 p.m., Moss agreed to keep the administrative stay in place until 4:30 p.m. to allow his court to “effectuate the transfer.” He urged lawyers for the men to contact the Massachusetts court immediately to seek any further relief there.

The new habeas action argues the effort is punitive and, as such, unconstitutional.

A Justice Department lawyer told Moss at the Friday hearing that a flight is scheduled for 7 p.m. Eastern Time today to take the men to South Sudan.

The new habeas action, a copy of which was provided to Law Dork, was filed on Thursday evening after the U.S. Supreme Court’s “clarification” order blocking the remedy order to provide those eight men with due process before such a deportation.

That case is the Massachusetts case Moss referenced, before U.S. District Judge Brian Murphy, in a class-action case filed before the U.S. efforts to send the men to South Sudan. The case is about all third country removals — deportations to a country other the the person’s country of origin or another country in which they have legal status.

After granting the administrative stay in the new habeas action on Friday morning, Moss held a quickly scheduled hearing starting at 12:30 p.m. Friday.

Many of the questions to the petitioners’ lawyers were about whether the new filing before the D.C. District Court was appropriate in light of the other case.

The petitioners’ lawyer argued that this is a different case because its claim is that the action of removal to South Sudan should be barred as a “punitive” measure. It is not a claim, as in the other case, about the process involved in third country removals, they argued.

When the government called the new action “abuse of process” in light of the Supreme Court’s earlier orders in the case, Moss pushed back.

“The precise basis of the legal claim” is different from the third country removals case, the Justice Department lawyer then acknowledged.

Moss took a recess at 1:40 p.m. to allow the Justice Department lawyer to obtain some additional information. Court went back into session at 2:30 p.m., and Moss reached the decision shortly after asking some follow-up questions.

It was clear throughout the hearing that the transfer question was central to Moss due to his “claim-splitting” concerns — that the plaintiffs were bringing multiple similar cases in different jurisdictions seeking a different result — and ultimately it proved key to Moss’s decision.

The hearing was held on the Fourth of July — a federal holiday and another reminder of the constant work of the federal district courts.

The distinct argument before the D.C. federal court in the new habeas action is that the effort to remove these eight men to South Sudan is punitive and should be barred permanently. At the least, they argue, the eight men’s removal should be stayed in the interim.

In their arguments for a temporary restraining order, which prompted Moss’s administrative stay and Friday’s hearing, the lawyers for the eight men argued that the government’s treatment of these men violates their Fifth Amendment due process rights, Sixth Amendment criminal rights, and Eight Amendment right against cruel and unusual punishments.

The case is Phan v. DHS (Docket No. 25-cv-2147).

The hearing is ongoing at publication and will be updated.

This is a breaking news development. Law Dork will have more as circumstances warrant.