WASHINGTON (States Newsroom) — The Trump administration lost a round Wednesday night in its attempts to use a wartime law for deportations of Venezuelans accused of gang ties.
The 2-1 decision by a U.S. District Court of Appeals for the District of Columbia Circuit panel will keep in place a temporary restraining order to prevent any more deportations of Venezuelan nationals ages 14 and older under the Alien Enemies Act of 1798, invoked by President Donald Trump.
The Trump administration sent three deportation flights carrying more than 250 men to a notorious mega-prison in El Salvador after the restraining order was issued.
Judge Patricia A. Millett, a nominee of President Barack Obama, and Judge Karen LeCraft Henderson, a nominee of President George H.W. Bush, ruled that the Department of Justice did not meet the requirements to lift the order.
Henderson also noted a presidential proclamation signed by Trump did not set up a due process to allow those accused under the Alien Enemies Act to challenge it.
Judge Justin R. Walker, who was appointed by Trump, agreed with the Trump administration’s request to block the restraining order.
Shortly after the appeals court order, the American Civil Liberties Union, which brought the suit against the Trump administration, filed a request with the U.S. District Court for the District of Columbia, asking for the temporary restraining order to be extended for another 14 days.
The ACLU noted it plans to file a preliminary injunction request on Friday “in which they intend to submit additional factual material so that there is a more complete record.”
A hearing on the preliminary injunction is set for April 8.
Bondi and state secrets privilege
Wednesday’s decision comes after Attorney General Pam Bondi on Monday invoked the “state secrets privilege” to block U.S. District Judge James E. Boasberg from obtaining additional information about deportation flights carried out under the Alien Enemies Act.
The privilege is a common-law doctrine that protects sensitive national security information from being released.
Boasberg has sought detailed information about the timing of the three deportation planes to determine if the Trump administration violated his order.
From the bench on March 15, he gave a verbal order that blocked the use of the act and ordered anyone on the deportation flights subject to the Alien Enemies Act to be returned to the United States.
The Trump administration has said only two of the three planes carried Venezuelans subject to the proclamation.
Due process
Henderson, in her opinion, noted that the Trump administration “has yet to show a likelihood of success on the merits.”
In oral arguments before the appeals court Monday, the Department of Justice argued that the U.S. District Court lacked the jurisdiction to hear the case and that the Trump administration’s “conduct is lawful under the plain text of the Alien Enemies Act.”
Henderson also raised due process issues. She noted that the temporary restraining order is simply pausing “the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal.
“In the government’s view, based on its allegation alone, Plaintiffs can be removed immediately with no notice, no hearing, no opportunity—zero process—to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered,” she said.
Millett in her opinion questioned why the Trump administration would ask for an emergency ruling to lift the order from Boasberg because “the government’s persistent theme for the last ten days has been that the district court’s oral direction regarding the airplanes was not a (Temporary Restraining Order) with which it had to comply.”
“But the one thing that is not tolerable is for the government to seek from this court a stay of an order that the government at the very same time is telling the district court is not an order with which compliance was ever required,” she said. “Heads the government wins, tails the district court loses is no way to obtain the exceptional relief of a (Temporary Restraining Order) stay.”
Millett also criticized the Department of Justice for appealing to the circuit court first before trying the district court.
“I would deny the stay on this additional ground,” she said. “The government needs to play by the same rules it preaches. And it needs to respect court rules.”
Judge sides with DOJ
Walker, who appeared to align with the Department of Justice’s arguments on Monday, sided with the Trump administration.
In his opinion, he reiterated his stance from Monday’s oral arguments.
Walker again argued that the right way for Venezuelans to object to detention under the Alien Enemies Act is a habeas corpus claim, which is used to challenge an unjust imprisonment, including immigration detention.
The original five men who brought the suit under the Alien Enemies Act, before the federal judge moved to a class suit, were in a detention center in Texas, rather than the District of Columbia.
“The problem for the Plaintiffs is that habeas claims must be brought in the district where the Plaintiffs are confined,” he said. “For the named Plaintiffs at least, that is the Southern District of Texas.”
Tren de Aragua gang
Border Czar Tom Homan said Monday that he was confident that the more than 250 Venezuelans on the deportation flights were members of the Tren de Aragua gang, according to White House pool reports.
Homan said that he got “assurances from the highest levels of (Immigration and Customs Enforcement) that” everyone on the planes were members of the Tren de Aragua.
“We’re talking about terrorists,” he said. “These are not good people.”
Immigration attorneys for the men and family members have said those sent to the mega-prison had no criminal record or were in asylum proceedings before an immigration judge.
