Trump’s Deportation of Venezuelans Divides Appeals Court (1)

Members of a federal appeals court panel were divided Monday at a hearing over whether to lift a pause on the Trump administration’s deportation of alleged Venezuelan gang members to El Salvador without a chance to object.

A three-judge panel is weighing whether to continue blocking President Donald Trump’s March 15 proclamation that invoked the Alien Enemies Act, a wartime statute used just three times in US history, to fly two planeloads of reputed members of the Tren de Aragua gang to a Salvadoran prison.

“There were planeloads of people,” Judge Patricia Millet of the US Circuit Court of Appeals in Washington said to a Justice Department lawyer. “There were no procedures in place to notify people” that they could be deported.

“Nazis got better treatment” under the Alien Enemies Act, said Millet, a Barack Obama appointee. Millett explained that during World War II the US had hearing boards that provided due process for detainees under the act.

“We certainly dispute the Nazi analogy,” Justice Department attorney Drew Ensign replied.

The exchange came hours after US District Judge James Boasberg in Washington ruled his temporary order will remain in effect, restricting new deportations until the men are given an opportunity to challenge their connection to the gang. The case may head to the US Supreme Court as a rift deepens between the judiciary and executive branch over the extent of Trump’s power to invoke the 1798 law, which applies when the US is in a state of “declared war” or suffering an “invasion or predatory incursion.”

After Boasberg issued his temporary stay, Trump called for the judge to be impeached, prompting a rare rebuke of the president by US Supreme Court Chief Justice John Roberts.

Class Action

Millet grilled Ensign on a case filed March 15 by five men in anticipation of Trump’s proclamation. Boasberg later provisionally certified the case as a class action covering all other people that the administration designates as gang members.

“They are challenging implementation of the proclamation in way that never gave anyone a chance to say ‘I’m not covered,”’ Millet said. “The president has to comply with the Constitution and laws like everyone else.”

But Circuit Judge Justin Walker, who was appointed by Trump, pressed an American Civil Liberties Union lawyer who filed the class-action lawsuit on why they didn’t sue individually in Texas, where the men were detained before the flight.

“You could have filed the exact same claim in Texas District Court,” Walker said. “Each individual could have said ‘I am not a member of Tren de Aragua and can’t be removed.”’

ACLU attorney Lee Gelernt said he didn’t know who had been designated a gang member because, he said, “this was all done in secret.”

Walker also questioned whether Boasberg could halt a national security operation with foreign policy considerations, as the White House argued.

A third judge on the panel, Karen Henderson, a George H.W. Bush appointee, asked no questions during the hearing.

In his earlier ruling, Boasberg said his pause should remain in place.

“Each vehemently denies being a member of Tren de Aragua,” he ruled. “Several in fact claim that they fled Venezuela to escape the predations of the group, and they fear grave consequences if deported solely because of the Government’s unchallenged labeling.”

Read More: What’s the Alien Enemies Act and Why Did Trump Use It

Boasberg has been critical of the government for allowing some accused gang members to be deported despite his ruling temporarily blocking them, demanding answers about when exactly the planes took off and why they didn’t turn around. In his ruling Monday, the judge said that the “most reasonable inference” is that the government “hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the government now acknowledges they are entitled.”

Boasberg, however, said the order doesn’t prevent the Trump administration from detaining or deporting suspected members of the violent Tren de Aragua gang under the Immigration and Nationality Act as members of a foreign terrorist organization, or FTO.

“The noncitizens comprising the class are already in United States custody, and any actual Tren de Aragua member is already subject to deportation as a member of an FTO, so there is little additional harm to the public by temporarily preventing their removal,” the judge wrote.

Read More: Judge Scolds DOJ Lawyer Over Venezuelan Deportation Order

Lawyers for the US Justice Department have argued that Trump’s invocation of the Alien Enemies Act can’t be reviewed by the courts, but Boasberg said he doesn’t need to resolve that “thorny question” at this stage.

“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,” the judge said.

Read More: What Happens If Trump Defies a Judge’s Order?

(Retops with appellate court argument.)

To contact the reporters on this story:
Erik Larson in New York at elarson4@bloomberg.net;
Chris Strohm in Washington at cstrohm1@bloomberg.net;
David Voreacos in New York at dvoreacos@bloomberg.net

To contact the editors responsible for this story:
Anthony Aarons at aaarons@bloomberg.net

Elizabeth Wasserman, Steve Stroth

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