Washington — An appeals court judge said Monday that Nazis were treated better under the Alien Enemies Act than Venezuelan migrants removed from the U.S. and flown to El Salvador earlier this month.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” Judge Patricia Millett said, admonishing the Justice Department during oral arguments.
“We certainly dispute the Nazi analogy,” said Drew Ensign, the government’s attorney
Millett noted that during World War II, Nazis were put before hearing boards under Franklin D. Roosevelt’s administration, and the Trump administration has conceded the alleged Tren de Aragua gang members deported to El Salvador and detained in a maximum security prison did not have the chance to appear in court.
The judge said the question at hand wasn’t the use of the act, but rather, the right of detainees to have due process and challenge their status as accused members of the gang.
Millett, appointed to the bench by President Barack Obama, said migrants may continue to be detained under the Alien Enemies Act, but they may not be deported until there is a decision on a preliminary injunction to stop the removals.
“No president has ever used this statute this way,” Millett said. The Alien Enemies Act has only been invoked three other times — during the War of 1812, World War I and World War II. It has never been used when the U.S. was not at war. She raised concerns about the act’s implementation by government employees who may have removed people to El Salvador who were not Tren de Aragua members.
Judge Justin Walker asked Ensign whether individual hearings were required before deportations, as D.C. District Chief Judge James Boasberg had written in his order Monday.
Ensign responded, “I agree with part of that.” Walker, a Trump nominee, pressed him on how that would work.
“There are some individualized Habeas hearings being heard in Texas,” Walker said. He asked, “If they can bring a habeas petition and say they’re not a member of [Tren de Aragua] … how would they bring that habeas claim?”
Millett, too, asked Ensign about the men who were deported to El Salvador as gang members: “Were people on planes last weekend given the ability to file habeas?”
The government responded that yes, the five plaintiffs were able to appear in court. But the plaintiffs were not on the deportation flights that are at the center of the case, and they remain in custody in Texas.
Ensign said he did not know how many migrants are being held in the U.S. under the AEA and said those who are currently held are being detained under Title 8 of the Immigration and Nationality Act. Ensign argued habeas petitions to appeal detention could be filed on behalf of this class in Texas.
“When were they given notice that they were being detained as part of [Tren de Aragua]” and how much notice was given before they were put on the plane, Millett asked.
Ensign said the answers were not in the record. He told the appeals panel, “We’ve agreed challenges to individual determinations can be brought.”
But Millett pressed him further, asking whether “the government considers itself within its right to pack every member of this class on an airplane before there is a reasonable amount of time to file a habeas petition?” Ensign did not respond immediately, but later said the statute does not require such notice — notice, that is, that they were being detained as Tren de Aragua members.
Plaintiffs’ attorney Lee Gelernt of the ACLU claimed, “There was no process,” and migrants “were designated [Tren de Aragua] without any advance notice and rushed onto planes.” He said he would soon submit declarations reflecting this.
The government also made the case before the appeals panel that it should be moved to another venue and that the president’s decision to invoke the AEA was not reviewable.
Ensign said the lower court’s order blocking the Trump administration from deporting alleged Tren de Aragua gang members under the act represented an “enormous intrusion” into presidential power.
Chief D.C. District Judge James Boasberg on Monday rejected the government’s motion to rescind his order regarding the administration’s use of the AEA for deportations. He found the plaintiffs were likely to win on the merits of the case because they’re entitled to due process and individual hearings.
He also expressed doubt that Mr. Trump’s use of the act for these deportations is lawful, writing, “Despite the President’s determination otherwise, Tren de Aragua is not a ‘foreign nation or government,’ and its actions, however heinous, do not amount to an ‘invasion’ or a ‘predatory incursion.'”
Judge Walker appeared to take the government’s side about the venue where the case was brought, pointing out that the complaint, which is being heard in Washington, D.C., could have been filed in Texas, where the five original plaintiffs are in custody.
Gelernt conceded the point, but argued “this has all been done in secret,” and it would not have enabled hearings to be held on an individual basis for all those accused of being gang members. The government has not released the names of the 238 men deported on two flights to El Salvador who are now being held in a maximum security terrorism prison, although CBS News reported their names last week.
“Absent a class [temporary restraining order], we would have had far more people sitting in a Salvadoran prison,” Gelernt said.
“I think that’s a tough precedent for you,” Walker told Gelernt, because no suit was being brought in Texas, where the defendants were being held.
“No class member is seeking release” Gelernt responded. “The government is using the act to try and short-circuit immigration proceedings.”
“We are absolutely not trying to get anybody out of detention.” Gelernt added.
“Can you — standing here — give us an example of a district court injunction that enjoined a national security operation that survived appeal?” Walker asked.
“The implications of not giving people a chance to contest it are extraordinary,” Gelernt replied.
“Many — if not most — of the people removed had no connection to the gang,” Gelernt said, asking that Judge Boasberg be allowed to continue his work. He predicted the plaintiffs would end up “on a plane” following the trajectory of the other alleged Venezeulan gang members if the order blocking the use of the AEA is lifted.
