During a court hearing on Monday, a federal appeals judge rebuked a Justice Department lawyer for the Trump administration’s recent treatment of Venezuelan migrants, comparing it unfavorably to the treatment of alleged Nazis during World War II. The U.S. Court of Appeals for the D.C. Circuit heard arguments regarding the administration’s use of the Alien Enemies Act to deport over 200 alleged members of a Venezuelan gang to El Salvador without due process.
Judge Patricia Millett expressed concern over the lack of procedures in notifying individuals and the absence of established regulations for the deportations, contrasting it with the treatment of alleged Nazis who were afforded hearing boards and procedural safeguards under the Alien Enemies Act. The judge questioned the government’s actions, highlighting the lack of notice given to the Venezuelan migrants and the denial of their rights to challenge the removal.
Deputy Assistant Attorney General Drew Ensign defended the administration’s actions, disputing the Nazi analogy and asserting that some individuals were able to file habeas petitions. The Trump administration sought to overturn a temporary restraining order issued by U.S. District Judge James Boasberg, which halted the use of the Alien Enemies Act for deportations.
The appellate judges indicated that a decision would be forthcoming, with Ensign drawing criticism for comparing the restraining order to a military directive. Judge Millett challenged the government’s stance on habeas petitions, questioning the feasibility of challenging the deportations before the individuals were removed from the country.
Despite government arguments that the detainees had the right to challenge their deportation, Judge Millett raised concerns about the lack of due process in implementing the proclamation. The administration declined to provide specific details on the deportation flights and the timing of the detainees’ petitions, prompting further scrutiny from the judge regarding the accessibility of legal remedies for those affected.
“The judge inquired, ‘Are you suggesting that individuals do not have the right, while in U.S. custody awaiting deportation, to challenge their circumstances?’ Judge Millett expressed concern over the lack of opportunity for individuals to contest their deportation before it occurs, labeling it a misinterpretation of the Alien Enemies Act. She pointed out that individuals were not given a chance to claim they were not affected by a proclamation, hindering the court system.”
“The issue at hand is the challenge to the implementation of a proclamation without providing individuals with the chance to opt out,” the judge remarked. “Claiming that this is an intrusion on the president’s war powers leaves the courts unable to act, which is a misinterpretation of legal precedent and the text of the Alien Enemies Act.”
“Both Judge Millett and Ensign acknowledged the unprecedented nature of the president’s actions, bringing the court into uncharted territory,” observed Millett. Ensign argued that the president’s actions were unprecedented in their intrusion upon war powers and foreign policy. Millett responded by stating, ‘This is also an unprecedented action, and therefore, there is no precedent for it. No president has utilized this statute in this manner before, leading us into unknown territory.'”
“The recent hearing followed Judge Boasberg’s ruling that the migrants deserved a court hearing before being deported, to determine their connection to the Tren de Aragua gang. Despite the Trump administration’s request to overturn the ruling, Judge Boasberg highlighted that the government still had a duty to ensure individuals could challenge their designation as gang members before deportation.”
“President Trump’s invocation of the Alien Enemies Act to deport alleged gang members was met with criticism from Judge Boasberg, who temporarily halted the deportations. The judge described the removals as ‘frightening’ and ‘troublesome,’ emphasizing the importance of due process for the individuals facing deportation.”
“Judge Boasberg stressed that the migrants were entitled to individualized hearings before deportation to determine their status under the Act. He noted that the individuals faced significant harm in El Salvador, including torture and death, emphasizing the need for due process and fair treatment.”
The judge ruled that the named Plaintiffs, who dispute their membership in Tren de Aragua, cannot be deported until a court decides on their challenge. The judge also questioned the Trump administration’s national security concerns, noting that the men would still be detained within the United States if not deported. The Department of Justice acknowledged that the deported men have the right to a habeas hearing but did not commit to providing a hearing before removal.
If the D.C. Circuit Court of Appeals overturns the block on deportations under the Alien Enemies Act, the Trump administration could deport suspected gang members with minimal due process. Lawyers for the Venezuelan men argue that the president overstepped his authority by targeting a gang, not a state actor, outside of wartime.
The plaintiffs claim that the president is exceeding his authority by applying the Alien Enemies Act to non-state actors. The administration argues that the judiciary cannot review the use of the act, as it falls under the president’s war powers.
The Trump administration seeks to overturn the temporary restraining order blocking deportations, while the judge investigates whether the government violated his order by sending the men to El Salvador instead of returning them to the U.S.
With deportations under the Alien Enemies Act on hold, the administration plans to deport noncitizens using other authorities. Venezuelan migrants may be repatriated through an agreement announced by the National Assembly President. The administration aims to target individuals with criminal records for deportation.
Today’s panel includes two judges.
Judges appointed by Republican presidents, one of whom was nominated by Trump, serve on the D.C. Circuit. This court represents the final opportunity for the Trump administration to appeal a case to the U.S. Supreme Court, where three judges appointed by Trump during his previous term reinforced the conservative majority.
