A three-judge panel of federal appeals court judges appeared skeptical that Donald Trump’s administration could summarily deport immigrants inside the United States under the president’s use of the Alien Enemies Act.
During a hearing in Washington, D.C. Monday, deputy assistant attorney general Drew Ensign called a federal judge’s ruling that temporarily blocks those deportations an “utterly unprecedented” “intrusion” of his authority.
“Well, it’s an unprecedented action, as well,” replied Judge Patricia Millett, who was appointed by Barack Obama. “We are in unprecedented territory.”
According to Ensign, the administration has the authority under the Alien Enemies Act to deport alleged members of Venezuela’s Tren de Aragua gang without a notice that would allow them opportunity to challenge their removal, or whether they’re even members. Those immigrants are able to challenge their detentions through a typical habeas corpus petition process, Ensign said.
But, as Judge Millet pointed out, the initial plaintiffs in the legal challenge in front of them had filed a complaint before Trump invoked the Alien Enemies Act, and before anyone boarded the planes.
“The proclamation was signed and people were put on planes immediately without knowing the basis, let alone an opportunity to file a suit,” she said. “Am I wrong about anything I just said?”
The administration loaded people into planes without any avenue to challenge what was happening to them, she said.
“Nazis got better treatment under the Alien Enemies Act … and they had a hearing first before people were removed,” she said. “[Venezuelans] weren’t told where they were going … They had no opportunity to file habeas or any type of petition … What’s factually wrong about what I said?”
“Well, your honor, we certainly dispute the Nazi analogy,” Ensign replied.
Trump invoked the Alien Enemies Act for the fourth time in U.S. history at some point before three planes with dozens of Venezuelans were sent to El Salvador’s notorious prison, where they do not have access to legal counsel and face the prospect of indefinite detention. Ensign told the court he did not have a timeline from when the Alien Enemies Act was invoked and when people were put on planes.
Trump’s order states that “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
The administration admitted in court filings that “many” of the people sent to El Salvador did not have criminal records, and attorneys and family members say their clients and relatives — some of whom were in the country with legal permission and have upcoming court hearings on their asylum claims — have nothing to do with Tren de Aragua.
“I think we’re going to be able to prove that many if not most of the people removed had no connection to the gang,” ACLU attorney Lee Gerlent told appeals court judges on Monday.
Trump’s reliance on the centuries-old wartime law marked its first use since the Second World War, when President Franklin Delano Roosevelt designated Japanese, German and Italian nationals as “alien enemies.”
More than 31,000 people and their families were interned at camps and military facilities across the U.S., according to the National Archives.
The argument that Trump “didn’t have to” provide any avenue for deported immigrants to challenge their detention under the Alien Enemies Act because it’s an “intrusion of president’s war powers” is a misreading of both case precedent and the act itself, Millett said.
“The president has to comply with the constitution and law just like everyone else,” she said.
On March 15, District Judge James Boasberg had issued a temporary restraining order that blocks the administration from removing people from the country under Trump’s terms of the Alien Enemies Act, but those flights were already on their way to El Salvador when his rulings were delivered verbally and in a written filing, prompting the judge to question whether Trump officials intentionally defied his orders.
Trump and his allies have since threatened to impeach Boasberg, prompting Supreme Court Chief Justice John Roberts to issue a rare public statement to say that “impeachment is not an appropriate response to disagreement concerning a judicial decision” and that a “normal appellate review process exists for that purpose.”
A standoff between the judge, who has ordered the administration to respond to several questions about the flights, has reached a boiling point, and legal scholars and critics of the administration have warned that Trump’s apparent defiance has reached a dangerous constitutional crossroads.
Administration officials were also ordered to issue a statement to Boasberg if they intend to raise a “state secrets” privilege to avoid answering his questions, citing national security concerns.
Last week, Judge Boasberg heard more in-court arguments from Trump attorneys and grilled them about his orders.
“Why was this proclamation essentially signed in the dark on Friday or Friday night or early Saturday morning and people rushed onto planes?” Boasberg asked. “Seems to me the only reason to do that is if you know it’s a problem and you want to get them out of the country before a suit’s filed.”
Before Monday’s hearing, Jude Boasberg denied the government’s request to lift his hold on deportations under the Alien Enemies Act, noting the “irreparable harm” that immigrants face in El Salvador’s prison.
“In Salvadoran prisons, deportees are reportedly ‘highly likely to face immediate and intentional life-threatening harm at the hands of state actors’” and face a “likelihood of potential torture,” he wrote.
“As the government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, ‘alien enemies,’” Boasberg added.
Immigrants who dispute the government’s allegations that they are members of Tren de Aragua cannot be deported “until they have been given the opportunity to challenge their designations as well,” he wrote.
They “are entitled to individualized hearings to determine whether the act applies to them at all,” the judge said.
