Judge calls Trump's use of Alien Enemies Act 'incredibly troublesome and problematic'

WASHINGTON — A federal judge in Washington said Friday that President Donald Trump’s use of the Alien Enemies Act to summarily deport alleged Venezuelan gang members is “incredibly troublesome and problematic” as he considers the government’s case to end his restraining order blocking their removals.

In a hearing, Judge James E. Boasberg said that while the president is empowered with wide latitude to enforce immigration laws, he questioned whether the government would allow individuals to appeal their cases of being members of the violent Tren de Aragua gang.

“It is also clear that individuals must have the chance to show that they are indeed members of a class that the (Alien Enemies Act) defines. My job is to find where the balance lies,” Boasberg said.

Arguing on behalf of the Department of Justice, Deputy Attorney General Drew Ensign said the government was not prepared to facilitate a process for individual reviews of the deportees’ cases.

A lawyer for the American Civil Liberties Union called the government’s case to eliminate due process “dangerous.”

“Obviously the Alien Enemies Act cannot be used against a gang,” said ACLU attorney Lee Gelernt to reporters following Friday’s proceeding. “But on top of not being able to be used at all, at a minimum, there has to be due process for people to show they are not even members of the gang.”

It was unclear if Boasberg would issue any rulings before Monday afternoon’s oral arguments before the D.C. Circuit Court of Appeals on the government’s motion for a stay of his March 15 temporary restraining order, which blocked the federal government from using the Alien Enemies Act — a wartime law — to deport alleged Tren de Aragua members without having to go through otherwise standard legal proceedings.

The judge’s order, issued in response to a lawsuit by Venezuelans who said they were wrongly accused and on the verge of being deported, included a demand that the Trump administration turn around planes already in the air and on their way to El Salvador, which the United States is now paying to detain accused terrorists in a maximum-security prison.

The planes — loaded with 261 Venezuelans and Salvadorans — landed anyway, leading the judge to demand that the federal government justify why its actions did not constitute a disregard for his order.

The Trump administration has argued that it did not ignore Boasberg’s order because the flights were already in international airspace by the time he issued his ruling, and were therefore not subject to his decree. Gelernt, though, revealed Friday that he would soon be filing an affidavit showing that some migrants on the planes were ultimately brought back to the U.S., potentially undercutting the government’s argument that returns weren’t feasible once they were airborne.

In a pointed rebuke at the start of Friday’s hearing, Boasberg forced Ensign to acknowledge he fully understood the intention of his orders to turn the planes around. When Ensign said he wasn’t personally aware of the details surrounding the flights last Saturday, Boasberg chided him.

“I often tell my clerks ... the most treasured valued item is reputation and credibility,” Boasberg said.

Boasberg — appointed by President Barack Obama and confirmed unanimously by the U.S. Senate — has been under fire from Republicans and from Trump, who has called for the judge to be impeached. The Department of Justice has asked for the judge’s removal from the case, asserting that he has no jurisdiction to influence the president’s exercising of his military powers — though the United States is not at war against Venezuela.

In one filing, Ensign said Boasberg’s demand in court that the government turn its planes around “betrayed a complete misunderstanding of the serious national security, safety, regulatory, and logistical problems presented by a fiat from the Court directed at pilots operating outside the United States and was made without regard to whether any such aircraft could feasibly be diverted or even had enough fuel to safely do so.”

Friday’s hearing was held a day after Boasberg, the chief judge for the U.S. District Court for the District of Columbia, reproached the Trump administration for providing him “woefully insufficient” information about the timing of the deportation flights. The government, which has appealed Boasberg’s ruling, has said it doesn’t want to share sensitive information about national security — though information about the flights is already public, and a widely circulated video posted by El Salvador President Nayib Bukele shows the faces of some of the detainees.

Lawyers representing Venezuelan migrants, meanwhile, have filed affidavits asserting that some their clients were sent to El Salvador’s CECOT prison based only on inaccurate interpretations of their tattoos and social media posts. Many were awaiting hearings on their immigration status, according to Gelernt, and the government has admitted that few have criminal records in the United States.

Some fled Venezuela after being detained and attacked over their political beliefs, according to their attorneys. Now, according to El Salvador’s president, those shipped to the country by the United States will be detained in a different country for a year or more, with the United States paying the bill.

“Every nationality and ethnic group in the United States has some organized crime gang,” Gelernt said. “If the president’s power were unreviewable under this act, then anybody could be termed an ‘alien enemy,’ saying you’re part of this gang or that gang and we’re going to send you to a Salvadorian prison. I think the implications of the government position are staggering.”

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Miami Herald editor David Smiley contributed to this report.

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