A panel of judges in the appellate court in the District of Columbia expressed mixed concerns Monday during oral arguments over a lawsuit involving President Donald Trump’s use of the Alien Enemies Act to deport alleged Venezuelan gang members.
The three-judge panel, comprising two Republican-appointed judges and one Democrat-appointed judge, focused on the due process rights of those deported under the Alien Enemies Act and whether Washington was the appropriate venue for the American Civil Liberties Union to bring a class action lawsuit about it.
“They’re not making sure these folks are members of the gang before they remove them,” Judge Patricia Millett, an Obama appointee, said of the Trump administration.
President Donald Trump signed a proclamation less than two weeks ago invoking the Alien Enemies Act, a wartime law that gives him the power to bypass all other immigration laws to abruptly deport Venezuelan migrants detained in the United States who are members of the transnational gang Tren de Aragua.
Millett appeared frustrated as she repeatedly asked Justice Department attorney Drew Ensign to answer whether two planes’ worth of people who were quickly deported under the act on March 15 were given a chance to challenge the allegation that they were members of the gang.
“I mean, you all could have hooked me up on Saturday and thrown me on a plane thinking I’m a member of Tren de Aragua and given me no chance to protest it,” Millett said. “Somehow, it’s a violation of presidential war powers for me to say, ‘Excuse me. No, I’m not. I’d like a hearing?’”
Ensign was adamant that people being deported under the Alien Enemies Act can make individual claims, known as “habeas” claims, in court that challenge whether they qualify for deportation under Trump’s proclamation.
His arguments were emblematic of the Trump administration’s broader position that the courts have no authority to dictate how the president invokes the Alien Enemies Act outside of vetting those individualized claims.
But the DOJ attorney did not have a response when questioned about whether the deportees even had a chance to lodge such complaints, saying he did not know the “precise contours” of the notices the deportees were given before they were shipped to a Salvadoran prison.
Attorney Lee Gelernt, who appeared on behalf of the ACLU, which is representing five Venezuelans in the lawsuit, said he plans to submit to the court record paper slips that deportees were given, which informed them that they were not entitled to due process. Gelernt said media reports have indicated that some deportees were not gang members yet were sent to a prison in El Salvador where they will be tortured.
Judge Justin Walker, a Trump appointee, focused on a different matter. He grilled Gelernt on why the ACLU brought the lawsuit in Washington and suggested the more appropriate venue appeared to be the Southern District of Texas, where the deportees were last detained before they were flown to El Salvador.
“The strangest place of all to file would be in Washington, D.C., where there’s likely not a single person detained under the [Alien Enemies Act],” Walker said.
TRUMP DOJ WAGES DUAL FIGHTS IN VENEZUELAN MIGRANTS CASE
The three judges are weighing whether to reverse a temporary restraining order issued by Judge James Boasberg in the lower court as part of a heated and fast-moving lawsuit over the powerful deportation statute, which was last used in the aftermath of the 1941 attack on Pearl Harbor. Boasberg blocked Trump from using the Alien Enemies Act for 14 days while the lawsuit plays out.
The third judge, Karen Henderson, an appointee of former President George H.W. Bush, was largely silent throughout the oral arguments, signaling she could be the one to decide which way the court leans when it issues its ruling.
