(WASHINGTON) — A federal appeals court is hearing arguments Monday over the Trump administration’s use of the Alien Enemies Act last week to deport more than 200 alleged members of a Venezuelan gang to El Salvador with no due process.
The hearing comes hours after a federal judge ruled that the migrants deserved to have a court hearing before their deportations to determine whether they belonged to the Tren de Aragua gang.
In a ruling denying the Trump administration’s request to dissolve his order blocking the deportations, U.S. District Judge James Boasberg wrote that Trump’s “unprecedented use” of the Alien Enemies Act does not remove the government’s responsibility to ensure the men removed could contest their designation as alleged gang members.
Trump last week invoked the Alien Enemies Act — a wartime authority used to deport noncitizens with little-to-no due process — by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States. Boasberg temporarily blocked the president’s use of the law to deport more than 200 alleged gang members to El Salvador, calling the removals “awfully frightening” and “incredibly troublesome.”
An official with the U.S. Immigration and Customs Enforcement subsequently acknowledged in a sworn declaration that “many” of the noncitizens deported last week under the Alien Enemies Act did not have criminal records in the United States.
“The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all,” Judge Boasberg wrote in his ruling Monday, adding the men were likely to win their case.
Judge Boasberg acknowledged that the use of the Alien Enemies Act “implicates a host of complicated legal issues” but sidestepped the larger question of whether the law was properly invoked, instead focusing on the due process deserved by the men. He added that the men have been irreparably harmed by their removal to an El Salvadoran prison where they face “torture, beatings, and even death.”
“Federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” he wrote.
Judge Boasberg also cast doubt on the Trump administration’s allegation that the decision risks national security, noting that the men would still be detained within the United States if they had not been deported.
During a court hearing on Friday, DOJ lawyers acknowledged that the men deported on the Alien Enemies Act have the right to a habeas hearing — where they could contest their alleged membership in Tren de Aragua — but declined to vow that each man would be given a hearing before they were removed from the country.
A three-judge appeals panel is hearing arguments Monday over the Trump administration’s request to overturn Judge Boasberg’s ruling blocking the deportations.
If the D.C. Circuit Court of Appeals overturns Boasberg’s blocking of the president’s use of the centuries-old wartime law, the Trump administration could exercise the authority to deport any suspected migrant gang member with little-to-no due process.
Lawyers representing the Venezuelan men targeted under Trump’s proclamation have argued that the president exceeded his authority by using the Alien Enemies Act against a gang — rather than a state actor — outside of wartime.
“The President is trying to write Congress’s limits out of the act,” the plaintiffs argued, adding that U.S. presidents have used the law three other times during or immediately preceding a war.
But the Trump administration has argued that the judiciary does not have the right to review the use of the Alien Enemies Act, alleging the deportations fall under the president’s Article II powers to remove alleged terrorists and execute the country’s foreign policy.
“The President’s action is lawful and based upon a long history of using war authorities against organizations connected to foreign states and national security judgments, which are not subject to judicial second guessing,” DOJ lawyers have argued in court filings.
The Trump administration is asking the appeals court to overturn Boasberg’s temporary restraining order blocking the deportations, while Judge Boasberg continues to examine whether the Trump administration deliberately defied his order by sending the men to an El Salvadoran prison rather than returning them to the United States as he directed.
“The government’s not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order and who ordered this and what’s the consequence,” Boasberg said on Friday.
With deportations under the Alien Enemies Act temporarily blocked, the Trump administration has vowed to use other authorities to deport noncitizens. Over the weekend, Venezuelan National Assembly President Jorge Rodriguez announced that the country had reached an agreement to resume repatriation flights of Venezuelan migrants from the U.S.
“We’re going to keep targeting the worst of the worst, which we’ve been doing since day one, and deporting from the United States through the various laws on the books,” border czar Tom Homan told ABC’s Jon Karl on Sunday.
The three-person panel hearing today’s arguments includes two judges nominated by Republican presidents, including one nominated by Trump himself. The D.C. Circuit is the last stop before the Trump administration could take the case to the U.S. Supreme Court, where Trump nominated three judges during his last term, solidifying the court’s conservative majority.
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