Washington — A federal judge raised questions about the lack of due process for immigrants deported under a wartime authority and rebuked the Justice Department for ignoring his order to turn around two deportation flights last Saturday.
“I made it very clear what you had to do,” D.C. Chief District Judge James Boasberg told Drew Ensign, the government attorney leading the case. “Did you not understand my statements in that hearing,” he asked Ensign.
The flights carried more than 200 Venezuelan nationals to El Salvador, after President Trump invoked the Alien Enemies Act of 1798 to deport them. The law gives the president broad authority to expel foreign nationals during wartime. Boasberg blocked the administration from relying on that authority Saturday and in a hearing the same day, ordered the two flights to be turned around in midair and returned to the U.S. The Trump administration did not follow the order, stating later that the flights were outside of U.S. airspace and therefore outside of the judge’s jurisdiction.
“You did tell them it was an order from me to turn the planes around … to bring back people to the United States? You understood that,” Boasberg said Friday. “Did you understand that when I said ‘do that immediately,’ I meant it?”
“I understood your intent to be what you were announcing would be binding,” Ensign replied. The Justice Department has argued that because Boasberg’s verbal order was not reflected in a written order, it was not binding.
Boasberg reminded the government it can continue to deport immigrants, but it may not do so under the Alien Enemies Act. “It’s important for the public to make sure those facts are clear,” he said. He expressed concern that the proclamation was “essentially signed in the dark” on Saturday and then the migrants were “rushed onto planes.”
He asked whether the Trump administration had invoked the act quietly because it believes it to be problematic. The Justice Department declined to say more. Boasberg noted that Immigrations and Customs Enforcement, or ICE, “had advance notice of this proclamation because it’s impossible this could have happened within two hours,” which Ensign confirmed.
The legal question raised by the use of the Alien Enemies Act is whether the government can summarily deport people without an “individualized assessment of their status,” Boasberg said, raising questions about due process for the migrants. He asked the government, “What happens if someone is not a member of Tren de Aragua or not a Venezuelan citizen or a U.S. citizen? How do they challenge their removal?”
The Justice Department did not offer a direct response.
Boasberg asked hypothetically whether the president could declare Chinese fishing vessels were invading the U.S. — and then proceed to detain and deport all the Chinese fishermen. Ensign affirmed that he could.
Ensign argued that the deportees maintain their ability to challenge their removal from the U.S. and detention in the El Salvador prison, even though they are no longer in U.S. custody. But he also argued that the Alien Enemies Act authorizes expulsion and detention of foreign nationals by the executive branch.
Boasberg asked the government, if the detainees “are entitled to some sort of hearing, some sort of individualized process … what is the standard for review of the executive’s evidence” about whether the detainees are members of Tren de Aragua and are Venezuelan?
Deference to the executive branch should not be a given, Boasberg said. The Justice Department maintained that the court lacked jurisdiction and deference should be given to the executive.
Boasberg asked the government what the role of the court was in ensuring that people aren’t improperly deported to Salvadoran prisons. He also raised the Alien Terrorist Removal Court as an avenue for the Justice Department to remove aliens who are suspected of terrorism. It was established by Congress in 1996, but it has never been used to deport a suspected alien terrorist.
“If you determine that an alien is an alien enemy under the AEA and may be summarily removed, aren’t you precluding that due process challenge?” Boasberg asked.
Boasberg also indicated he was considering narrowing his temporary restraining order blocking the administration from carrying out any deportations under the Alien Enemies Act. He suggested he might modify it to allow the removal of those who admit they are members of Tren de Aragua or who do not challenge their deportation.
He also asked for further briefing from both sides on remedies the government should set up for administrative proceedings such as a hearing board and legal review of the cases on an individual basis.
“We are a long way from the government being willing to provide people with this process,” said Lee Gelernt, arguing for the plaintiffs. He welcomed the idea of administrative hearings but also asked for judicial review to prevent the Alien Enemies Act from being invoked “against any gang.”
