Notwithstanding the verbiage

Why the government's late-night effort to deport Guatemalan children failed

On September 18, 2025, in L.G.M.L. v. Noem, the U.S. District Court for the District of Columbia issued a preliminary injunction barring the government from deporting a class of unaccompanied Guatemalan children. L.G.M.L. illustrates a well-worn adage of Executive Branch lawyering: if you are going to try to deport children without legal justification, it is best to do so in the middle of the night in the hope that the judge is sleeping.

1:12 AM to 1:45 AM

The plaintiffs in L.G.M.L. v. Noem are Guatemalan children who are unlawfully in the United States without their parents. They are currently housed at shelters and foster homes.

The Office of Refugee Resettlement (ORR) is the government agency responsible for the care of unaccompanied alien children. At 11:45 PM on Saturday, August 30, 2025, ORR notified care providers that Guatemalan children staying with them would immediately be transported back to Guatemala. Shelters were instructed that the children had to be prepared for discharge within two hours (i.e., the children had to be ready to go by 1:45 AM), while foster homes were given four hours to prepare the children (i.e., until 3:45 AM).

The lead plaintiff, L.G.M.L., is a 10-year-old girl currently residing at a shelter in San Benito, Texas. According to a declaration submitted to the court, she was “taken out of bed around 4:30 in the morning for transport.” The declaration describes how other children were “pulled out of their beds,” causing confusion and fear. One young girl “was so scared that she vomited and asked to speak with a clinician.”

ORR’s Acting Director, Angie Salazar, submitted a declaration (scroll to the bottom) stating that children would be sent to Guatemala only if “the child’s attorney of record has not affirmatively protested the child’s reunification with their parent (or legal guardian) in Guatemala.” However, the declaration also notes that ORR did not inform the children’s legal service provider of the government’s operation until 1:12 AM on August 31, 2025, when it sent them a notice that the children would be repatriated on August 31—i.e., later that day. ORR’s notice said that “legal service providers should immediately notify ORR and ICE” if they believed a child should not be deported. Recall that the children were expected to be ready for discharge by 1:45 AM on August 31, a mere 33 minutes later in the middle of the night.

Multiple Guatemalan children submitted declarations stating that they had been abused in Guatemala (it is not clear whether these children were immediately marked for deportation). According to one child’s declaration: “Before I left Guatemala, a judge put me in a shelter for boys whose families severely mistreated them. This was supposed to protect me. However, living in that government shelter was horrific. For close to one year, staff members subjected me to many kinds of physical abuse on an almost daily basis, and also sexually abused me.” Another child’s declaration states that both parents “hit me with a belt, with their hands and with sticks, and sometimes I would bleed.” Ms. Salazar’s declaration says that children would be returned to Guatemala only if they did “not have indications of child abuse/neglect perpetrated by a parent/legal guardian,” but her declaration does not explain how this assessment was made.

Immigration lawyers got wind of the operation and managed to get a lawsuit on file at 1:02 AM Eastern on Sunday morning, with a motion for temporary restraining order filed at 1:30 AM. They alleged that the government’s action violated the Due Process Clause as well as a federal statute that granted procedural protections to unaccompanied alien children. Nine individual children were named as plaintiffs, but the plaintiffs also sought relief on behalf of a class of similarly situated unaccompanied children. At 4:22 AM, a federal judge granted a temporary restraining order as to the nine children named in the lawsuit—but not to the class as a whole—and scheduled a hearing for 3:00 PM the next day.

During the morning of August 31, prior to the scheduled hearing, the government started loading children onto deportation planes. A declaration describes the scene at the airport:

I arrived at the FBO Sun Valley Airport in Harlingen. I could see two of the ICE transport planes parked on the tarmac. The stairs had already been pulled away and the door to the plane, which I had been informed had the children on board, was already closed. I went to the building at the tarmac. I could see officers inside. I knocked on the door. I told the young man who answered the door that I was an attorney, that I had clients on the plane, and that I had a court order stopping the plane from leaving. 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.

Having apparently learned of the impending departures of the airplanes, the court moved the hearing from 3:00 PM to 12:30 PM.

At the 12:30 hearing, the government’s lawyer argued that ORR was exercising its statutory authority to reunify the children with their parents. The lawyer represented his “understanding” that “for these children, a request has been made by either their parent or legal guardian.” According to the lawyer, it was “fairly outrageous that plaintiffs are trying to interfere with these reunifications.”

Notwithstanding the lawyer’s statements, the court entered a temporary restraining order that applied to the class as a whole. Additional litigation followed, during which a Guatemalan government report emerged stating that … well, I’ll get to that a little later.

The greatest extent practicable

On September 18, 2025, a different federal judge in D.C. granted a classwide preliminary injunction barring the children’s deportation. The district court concluded that the government’s effort to send the children to Guatemala was illegal. That ruling is correct.

In 2002, Congress transferred responsibility for handling the “care of unaccompanied alien children” to the Office of Refugee Resettlement (ORR). 6 U.S.C. § 279(a). Among other things, ORR is responsible for “coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status” and “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied minor child.” 6 U.S.C. § 279(b)(1)(A), (B). And—crucial to this case—ORR is responsible for “reuniting unaccompanied alien children with a parent abroad in appropriate cases.” 6 U.S.C. § 279(b)(1)(H).

Six years later, Congress enacted the Trafficking Victims Protection Reauthorization Act. This statute provides:

In order to enhance the efforts of the United States to prevent trafficking in persons, the Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Secretary of Health and Human Services, shall develop policies and procedures to ensure that unaccompanied alien children in the United States are safely repatriated to their country of nationality or of last habitual residence.

8 U.S.C. § 1232(a)(1). (ORR is an office within the Department of Health and Human Services, hence the reference to the Secretary.). OK—so the government has to develop policies to ensure that children are “safely repatriated.” What policies?

A bit further down, there’s a subsection entitled: “Ensuring the safe repatriation of children.” 8 U.S.C. § 1232(a)(5). And, under that header, we get the provision at the core of the case: 8 U.S.C. § 1232(a)(5)(D). It provides that “[a]ny unaccompanied alien child sought to be removed by the Department of Homeland Security,” other than Canadian and Mexican aliens, “shall be”:

(i) placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a);

(ii) eligible for relief under section 240B of such Act (8 U.S.C. 1229c) at no cost to the child; and

(iii) provided access to counsel in accordance with subsection (c)(5).

Subsection (c)(5), in turn, directs the Secretary of Health and Human Services to “ensure, to the greatest extent practicable,” that unaccompanied alien children in government custody “have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking.”

Translated from legalese into English:

• Subsection 1232(a)(5)(D)(i) says that alien children “sought to be removed” shall be “placed in removal proceedings,” which means they get procedural protections such a hearing before an immigration judge.

• Subsection 1232(a)(5)(D)(ii) says that alien children are eligible for voluntary departure, which is advantageous if they ever seek to re-enter.

• Finally, Subsection 1232(a)(5)(D)(iii) directs the government to “ensure, to the greatest extent practicable,” that the children have access to counsel.

TLDR: when DHS seeks to remove unaccompanied alien children, the children get a removal hearing, are eligible for voluntary departure, and, “to the greatest extent practicable,” they can access a lawyer.

On August 31, the government attempted to load the children onto deportation planes without giving them removal hearings, the opportunity for voluntary departure, or the opportunity to confer with lawyers. I’m sorry, but sending an email to counsel at 1:12 AM, and then loading children onto deportation buses as early as 1:45 AM, does not count as providing access to counsel “to the greatest extent practicable.” That sounds like an open-and-shut case that the government broke the law.

How to remove children without removing them

In court, the government offered the following defense of its operation: The Guatemalan children, who were being loaded onto airplanes to Guatemala, weren’t being “removed” from the United States, and so the statutory removal protections didn’t apply.

This seems like arguing that a person who has been doused with a bucket of water isn’t wet. It seems obvious that when an alien is involuntarily bussed to an airport and flown to a foreign country, he is being removed from the United States.

Nevertheless, the government insisted that it wasn’t removing these children but instead reuniting them with their parents and repatriating them. Remember 6 U.S.C. § 279(b)(1)(H), which gives ORR responsibility for “reuniting unaccompanied alien children with a parent abroad in appropriate cases.” According to the government, that provision authorizes ORR to reunite children with their parents—which, the government claimed, is different from removing them. Therefore, the argument goes, by exercising its “reuniting” authority, ORR can strip the children of all of their legal protections that apply when the government seeks to remove a child.

The government also pointed to the provision in the Trafficking Victims Protection Reauthorization Act directing the Secretary of Homeland Security to “develop policies and procedures to ensure that unaccompanied alien children in the United States are safely repatriated to their country of nationality or of last habitual residence.” According to the government, when it “safely repatriates” these children pursuant to the “policies and procedures,” it isn’t “removing” them.

Let’s assume for the moment that the government was, in fact, reuniting these children with their parents. Even under that assumption, the government’s argument is wrong. When a child is “repatriated” from the United States and “reunited” with his parents in a foreign country, he is being removed. Removal is the first step of the repatriation and reunification process. In order to repatriate the child to a foreign country and reunite him with his parents, the government must first take the child out of the United States—i.e., removal.

Even if you might think that, in the abstract, one can repatriate a child without removing him, the statute’s context makes clear that this is not the case here. Remember that 8 U.S.C. § 1232(a)(5) is called: “Ensuring the safe repatriation of children.” Section 1232(a)(5)(D)—which contains the key procedural protections in this case—is located within that section. In other words, these removal protections are a means of ensuring “the safe repatriation of children.” It makes no sense to say that children who are repatriated aren’t “removed” and hence don’t get those protections.

Here’s an example. Suppose you’re the manager of a museum. There’s a statue in the museum that currently sits on a pedestal. You’d like to relocate the statue to a different pedestal. So you hire a contractor to conduct this operation, and give him guidelines saying the following: “Ensuring the safe relocation of the statue: Remove the statue from the pedestal using a brace.”

The contractor doesn’t use a brace and the statue breaks. You accuse the contractor of violating the guidelines. Now suppose the contractor offers the following excuse: “Actually, I wasn’t removing the statue from the pedestal, I was relocating it to a different pedestal.”

You’d say that the contractor’s excuse makes no sense. As a matter of ordinary English, you can’t relocate a statue to a different pedestal without removing it from the first pedestal. Moreover, the “Remove the statue from the pedestal using a brace” instruction is located in the section called “Ensuring the safe relocation of the statue.” So obviously when you relocate the statue, you have to follow the removal procedures.

Unfortunately, that’s the argument the government is using to justify the middle-of-the-night deportations of these children. The government is saying it’s “repatriating” the children, not “removing” them, and therefore need not follow statutory requirements governing the removal of children—even though those requirements appear in the section called “Ensuring the safe repatriation of children.”

Still have doubt? Take a look at Section 1232(a)(5)(C), which comes immediately prior to Section 1232(a)(5)(D) (the section with the removal protections). Section 1232(a)(5)(C) directs government officials to prepare a report “on efforts to improve repatriation programs for unaccompanied alien children.” It then says:

Such report shall include-

(i) the number of unaccompanied alien children ordered removed and the number of such children actually removed from the United States;

(ii) a statement of the nationalities, ages, and gender of such children;

(iii) a description of the policies and procedures used to effect the removal of such children from the United States and the steps taken to ensure that such children were safely and humanely repatriated to their country of nationality or of last habitual residence, including a description of the repatriation pilot program created pursuant to subparagraph (A).

This provision says that the report on repatriation includes information on the process used to effectuate the removal. So of course removal is part of repatriation!

Taking a step back, Congress enacted a statute saying that children wouldn’t be removed unless they had a hearing and access to counsel. Congress was trying to do something when it enacted these rudimentary procedural protections. Yet, the government is saying that Congress left open the world’s biggest loophole: the government could avoid those protections simply by saying “we’re not removing these children, we’re just waking them up at 4:30 AM, putting them on a plane, and flying them out of the country.” That’s not the way it works.

“Some phone lines were disconnected”

So far, I’ve assumed that the children would be reunified with their parents when they got back to Guatemala. As it turns out, this is not the case.

As you may recall, at the August 31 hearing, the government lawyer represented to the court that “for these children, a request has been made by either their parent or legal guardian.” According to the lawyer, it was “fairly outrageous that plaintiffs are trying to interfere with these reunifications.”

Not so much. A few days later, a Guatemalan government report materialized. According to the report, in July 2025, ORR sent Guatemala a database with the names of 609 adolescents that ORR wanted to send back to Guatemala. The Guatemalan government conducted an investigation. Here’s what it found:

• The U.S. government provided phone numbers of only 204 of the 609 adolescents.

• Guatemalan government officials called those phone numbers. Some “phone lines were disconnected”; “others indicated that we had the wrong number”; even when it was the right number, some families “were surprised, some even annoyed, that we had contacted them.”

• Guatemala could confirm the information of only 115 of the 609 adolescents.

• Guatemalan authorities conducted home visits for the families of those 115 adolescents. Only 50 families were willing to welcome their children back, with the caveat that none of them were requesting the children’s return. 59 families refused the home visit, “sometimes in an intimidating manner.” The other 6 adolescents were either with a sponsor in the United States or back in Guatemala.

In other words, according to this document, the government lawyer’s statement—that the parents had requested their children back, and the court was interfering with the reunifications—was incorrect. After this document came to light, a new government lawyer withdrew the prior lawyer’s statement.

In fairness to the government, there’s a lot of uncertainty as to what happened, so perhaps additional information will come out that casts the government’s operation in a better light. But, based on what we know now, let me make a few observations about the government’s switcheroo.

First, let’s assume—favorably to the government—that the government simply didn’t know, as of August 31, whether the children would be reunited with their parents (as opposed to knowing that they wouldn’t). Under 6 U.S.C. § 279(b), ORR has statutory responsibility for the care of these children, including ensuring that the children’s interests are considered. It seems to me that if ORR is going to wake up these children in the middle of the night and put them on airplanes, it should have some idea of the fate that will befall them when they reach their destination.

Second, in particular, ORR should have checked whether these children would be reunited with their parents. Remember that ORR’s legal theory for stripping these children of their statutory protections against removal was that ORR was exercising its separate font of authority in 6 U.S.C. § 279(b)(1)(H). That statute gives ORR responsibility for “reuniting unaccompanied alien children with a parent abroad in appropriate cases.” In other words, the government’s whole theory hinged on the fact that the children would be reunited with a parent. Whether the children would be reunited with a parent seems like the kind of thing worth checking.

Third, the government elected to carry out its operation in the middle of the night on the Saturday of Labor Day weekend, apparently on the view that this would maximize the odds that a judge wouldn’t be able to enjoin the operation in time. In effect, by timing the operation to avoid judicial review, the government was appointing itself as the sole guardian of the children’s statutory rights. In this context, the government should have been extra double super careful to ensure that the premise of its legal theory was correct.

The plaintiffs, to their credit, did manage to get a lawsuit on file. Which leads me to my fourth point—if the government wasn’t sure whether the children would be reunited with their parents, the government lawyer shouldn’t have told the federal judge that “a request has been made by either their parent or legal guardian” and that it was “outrageous” for the plaintiffs’ counsel to interfere with the operation.

These weren’t just extemporaneous statements from the podium. A few days later the government filed its written brief in the case, which doubled down on the representation that the children would be reunited with their parents. The first two sentences of the government’s brief were as follows: “This case is uncomplicated, both legally and morally: where possible, unaccompanied alien children should be reunited with their parents or guardians. Their continued separation is a tragedy to be cured, not prolonged as Plaintiffs request classwide, regardless of a specific child’s best interests.” Also in the introduction to the brief, the government declared that it “reviewed each child’s case in order to make individualized determinations whether, for certain children from Guatemala, reunification with their parents was in each child’s best interests. It then acted, in cooperation with the government of Guatemala, to reunify qualifying children with their parents without through [sic] years of removal proceedings before returning them to their parents.”

Indeed, the government went as far as to rely on parents’ natural right to rear their own children as a basis to permit the deportations. In response to the plaintiffs’ Due Process claim, the government invoked the Guatemalan parents’ “exceptionally strong parental interest in the care, custody, and control of their own children,” citing case law referring to parental rights as “perhaps the oldest of the fundamental liberty interests.”

I have great sympathy for lawyers, especially government lawyers, who are forced to make arguments in the heat of the moment regarding fast-moving matters of which they have no personal knowledge. It’s inevitable that lawyers will sometimes get facts wrong.

But this was bad. For one, the government had complete control over the timing of this operation. There was no emergency. The government could have taken an extra day to assess whether the premise of its legal theory was accurate.

Failing that, the government undoubtedly knew that a quick lawsuit would be filed. It timed this operation with such a lawsuit in mind. It knew that a lawyer would imminently have to explain this situation to the judge. It would have been easy to prepare the lawyer. Just tell the lawyer about the operation a day in advance and give the lawyer a fact sheet.

Also, the stakes were high. Inaccurate statements in litigation are always bad, but they usually don’t lead to a permanent advantage for one side. The benefit of the adversarial process is that the truth usually comes out: when one side makes a mistake, the other side has an incentive to correct it. But here, the government’s incorrect statements could have resulted in children being deprived of any opportunity for relief. By the time of the 12:30 PM hearing on August 31, children had already been loaded onto airplanes. The doors were closed. The airplanes were ready to go. If the district judge had relied on the government’s representations and denied the classwide temporary restraining order, the airplanes would have immediately taken off. And then, as to those children, the government would have said that the case was moot. At a minimum, the case would have been extremely difficult to prosecute with the children out of sight and mind in Guatemala.

Notwithstanding the verbiage

Finally, the record does not inspire confidence in the government’s determination as of August 31 that the children would be reunited with their parents.

Let’s take a closer look at the two key documents in the record: the declaration of Angie Salazar, ORR’s Acting Director, and the Guatemalan government report. Ms. Salazar attests that in July 2025, Guatemala “requested the U.S. Government reunify unaccompanied alien children (UAC) in ORR custody with their parents or legal guardians in Guatemala,” and on July 24, 2025, ORR leadership had a meeting with Guatemalan officials at which “ORR explained that our authorities permitted us to reunite children with a parent abroad in appropriate cases.”

Ms. Salazar also declares that “ORR would only be sending to Guatemala for reunification ying [sic] those children with an identified parent (or legal guardian) in Guatemala.” And: “ORR verified based on its records that each of the identified children do have a parent or legal guardian in their home country of Guatemala and their government is requesting that the children be returned to their parent or legal guardian in Guatemala.” These are definitive statements from a high-level official in the U.S. government, made under penalty of perjury, that the children would be reunited with their parents in Guatemala.

But Ms. Salazar’s declaration doesn’t disclose that ORR sent the Guatemalan government a list of 609 adolescents’ names and ostensible phone numbers. The court would have had no way of knowing that if the Guatemalan government’s report hadn’t shown up a few days later. This is a crucial plot point. ORR evidently sent that list to Guatemala so that Guatemala would contact the families. If a judge was aware of that, he might have asked basic questions like: “did you ask the Guatemalan authorities whether they contacted the families? If so, what did they say?”

Ms. Salazar’s declaration does say that on August 26, 2025, Guatemala sent the United States a “formal diplomatic note.” The “formal diplomatic note” does not appear to be a public document, but according to Ms. Salazar, the note states that Guatemalan children “will be received by officials from various Guatemalan government entities, consistent with the framework of the ‘best interests of the child’” for “‘reunification with suitable family members.’” Ms. Salazar’s declaration then includes the following portentous sentence:

Notwithstanding the verbiage of the diplomatic note mentioning suitable family members, as noted, ORR had previously discussed with Guatemalan officials that its authority under 6 U.S.C. § 279(b)(1)(H) was limited to parents or legal guardians in appropriate cases, and ORR thus proceeded to consider eligibility for reunification on that more limited basis.

As any good physicist knows, Newton’s Fourth Law holds that if a declarant uses the phrase “notwithstanding the verbiage” in her description of a document and doesn’t attach the document, the document probably doesn’t support the declarant’s argument. So the diplomatic note doesn’t say that the children would be reunited with their parents. But, the declaration claims, ORR had “previously discussed”—likely some extemporaneous oral statement in a meeting—ORR’s statutory authority under U.S. law. And it is a truth universally acknowledged that the Guatemalan government is firmly committed to ensuring that the U.S. government comply with U.S. officials’ oral descriptions of U.S. law. So, notwithstanding the verbiage of the diplomatic note, the government conjures the reality that the children will be reunited with their parents.

Back to the Guatemalan report, which says: “On August 31 of this year, we received information from several agencies that a substantial number of adolescents that were on several lists provided by the ORR and the United States Government were being returned to this country.” August 31 was the day of the scheduled deportations.

So to summarize, after failing to receive information from the Guatemalan government confirming that children would be reunited with their parents, the U.S. government decides to exercise its statutory authority to reunite children with their parents. So it wakes up children in the middle of the night, puts them on deportation planes, and tells Guatemala “the children are coming today” in an effort to prevent a judge from ever hearing the children’s case. When the children manage to sue anyway, the government tells the court that the children would be reunited with their parents—and that it was “outrageous” for the court to interfere with these fake reunifications.