Over the past two weeks, immigration lawyers from court to court have been awarded temporary orders in five states to prevent the Trump administration from using the Alien Enemy Act, an 18th-century wartime law that expels Venezuela and is accused of being a terrorist prison for El Salvador.
Judges have been harsh in assessing how the White House uses powerful regulations. A federal judge in Manhattan said Tuesday: “Boats are treated better by law now.”
But at least one thing lawyers have not managed to do so far is protecting another group of Venezuelan immigrants: about 140 people already in El Salvador, who were deported under the bill a month ago.
Earlier Friday, the ACLU shot the men for due process. The group’s lawyers filed the latest version of President Trump’s use of the Alien Enemy Act on March 15, the first to challenge his legal invocation.
This time, the American Civil Liberties Union (ACLU) asked a federal judge in Washington not to stop the men from being taken to El Salvador, but to help them return to the United States.
When the American Civil Liberties Union filed its initial version of the lawsuit in the federal district court in Washington, Judge James E. Poasberg issued an immediate order requiring the government to send any Venezuelan aircraft to El Salvador under the Alien Enemy Act and reverse any flights already in the air.
But this never happened. The administration’s inaction ultimately led to Judge Boasberg’s threat to whether Trump officials violated his original instructions – now the latest lawsuit.
Meanwhile, the American Civil Liberties Union (ACLU) filed at least seven lawsuits in seven federal courts nationwide, challenging Mr. Trump’s announcement on March 14 as one of the core tools of his active deportation agenda.
These lawsuits have involved two different but related legal issues.
One is an important procedural question: whether the Trump administration has provided officials with enough time and opportunity to assert that dismissed immigrants have questioned their deportation in court.
In a court application filed in the ACLU case in Texas on Thursday, top federal immigration officials said the government has decided that “reasonable time” has allowed immigrants to express a desire to challenge deportation could only be 12 hours. The official said immigration could at least challenge it in court.
Another question that the ACLU has been exploring is more substantial: whether the White House should be allowed to use the bill against Venezuelan immigration. The bill was passed in 1798 and was cited only when war was declared or military invasions against hostile foreign members.
Trump officials have repeatedly argued that the Venezuelans they were trying to deport were members of a criminal gang called Tren de Aragua, whose presence in the United States equals the Venezuelan government-backed invasion. However, this view is not only rejected by some U.S. intelligence officials, but also considering the increasing number of judges in the ACLU lawsuit.
For example, during a hearing Tuesday in the Federal District Court of Manhattan, Judge Alvin K. Hellerstein blew up Trump’s use of the statute, saying it was “a violation of the law.”
Judge Hellerstein, appointed by President Bill Clinton, said several times that he believes Mr. Trump uses the law in an inappropriate way. He noted in particular that the law does not authorize the government to “leas prisons abroad and not allow cruel and unusual punishment in U.S. prisons.”
When Justice Department attorney Tiberius Davis asked questions about this view, Judge Hellestine knocked him down.
“Once they have been removed, your honor is not in the United States,” Davis said. “That’s El Salvador. They’re an independent foreign sovereign.”
“That’s the point,” Judge Hillestine said.
Another judge, Charlotte N. Sweeney, issued a ruling in the Denver District Court this week, determining that Trump’s declaration unreasonably extends meanings such as “war” and “invasion” in the opposite way to the actual text of the Alien Enemy Act.
“Because the ‘text and history’ of the bill uses these terms to refer to military operations that represent actual or imminent wars, rather than ‘massive illegal immigration’ or ‘criminal activities’ – the bill cannot maintain the declaration,” she wrote.
While the Supreme Court has not yet weighed on the broad question of whether the White House uses the regulations correctly, the court has made a decision on whether Trump officials have given due process to immigrants.
The judge ruled on April 7 that the Venezuelan immigrants must be warned in advance if the government intends to deport under the Foreign Enemy Act so that they can challenge them in court, but only if they are challenged in places where they are detained. The Justice has not yet raised their opinion on how much (or what type) the immigration should receive.
Nevertheless, the ACLU used the ruling in an updated lawsuit filed in Washington and filed a second Supreme Court decision in another eviction case. In the decision, the Justice determined that the White House must “promote” the release of Kilmar Armando Abrego Garcia, a Maryland man, from El Salvador custody after officials violated an earlier court order last month that explicitly violated his sent to the state.
ACLU lawyers essentially seek to combine the two rulings into a single tool, not only asking the Trump administration to provide nearly 140 Venezuelans in El Salvador detention and to some extent challenging their situation, but also asking officials to take active and proactive steps to ensure their release, as they hadn’t had the opportunity to do so before.
In addition, lawyers also believe it is appropriate to challenge the deportation before Judge Boasberg of Washington, although this is not the place where these people are currently held. They say Washington is the appropriate place for legal proceedings when inmates are detained overseas.
But even if this strategy succeeds, it is difficult to force the government to take actual measures to release these people from the custody of El Salvadors.
For example, Mr. Abrego Garcia remains in El Salvador two weeks after the Supreme Court ordered the White House to help gain freedom.
Jonah E. Bromwich and Mattathias Schwartz Contribution report.
