Washington — A federal judge on Tuesday blocked the Trump administration from deporting noncitizens detained in the Southern District of New York under President Trump’s proclamation invoking the wartime Alien Enemies Act.
U.S. District Judge Alvin Hellerstein said in a 22-page decision that the president’s March proclamation ordering the summary removal of Venezuelan migrants exceeded the scope of the Alien Enemies Act, an 1798 law that the Trump administration has relied on to deport noncitizens that his administration claims are part of the gang Tren de Aragua.
The Alien Enemies Act gives the president the power to detain and deport migrants when there is a declared war between the U.S. and a foreign nation, or when there is an “invasion” or “predatory inclusion” against the U.S. by a foreign nation or government.
But Hellerstein, appointed by President Bill Clinton, said that the Trump administration failed to demonstrate the existence of a war, invasion or predatory incursion. Because of that, the Alien Enemies Act “was not validly invoked by the presidential proclamation,” he wrote.
The judge said noncitizens in his judicial district can still be removed under the Immigration and Nationality Act.
Lee Gelernt, a lawyer with the American Civil Liberties Union who argued on behalf of the plaintiffs, said in a statement that the district court “joined several others in correctly recognizing the president cannot simply declare that there’s been an invasion and then invoke a wartime authority during peacetime to send individuals to a Gulag-type prison in El Salvador without even giving them due process.”
Hellerstein is the second federal judge to bar Trump administration officials from using the proclamation invoking the 1798 law to remove certain Venezuelan migrants at risk of deportation. U.S. District Judge Fernando Rodriguez, appointed by Mr. Trump in his first term, ruled last week that Mr. Trump’s invocation of the Alien Enemies Act is unlawful and blocked administration officials from using the law and the president’s proclamation to detain, transfer or remove Venezuelan migrants who either live or are detained in southern Texas.
Challenges to Mr. Trump’s use of the Alien Enemies Act have been filed throughout the country in response to a Supreme Court decision last month that allowed removals under the law. But the high court said that Venezuelan migrants covered by the declaration are entitled to notice and the opportunity to challenge their confinement and removal under the Alien Enemies Act through habeas corpus proceedings brought in the district where they are being detained.
The two-century-old law has only been employed previously during three periods of declared wars. But in March, Mr. Trump issued a proclamation claiming that the gang Tren de Aragua “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Mr. Trump’s proclamation said that all Venezuelan citizens who are at least 14 years old and in the U.S. unlawfully were subject to apprehension and removal as “alien enemies.”
The declaration claimed that the gang is undertaking “hostile actions and conducting irregular warfare” against the U.S. directly and at the direction of Venezuelan President Nicolas Maduro’s regime. But an April assessment from the National Intelligence Council obtained by the Freedom of the Press Foundation through a public records request found that “while Venezuela’s permissive environment enables TDA to operate, the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.”
The declassified assessment said that most of the intelligence community “judges that intelligence indicating that regime leaders are directing or enabling TDA migration to the United States is not credible.”
The case before Hellerstein was brought by two plaintiffs — identified in filings as G.F.F. and J.G.O. — who were initially detained at the Orange County Jail in New York and were transferred to an immigration facility in Texas to be deported to El Salvador. But they were removed from a plane in response to temporary orders issued by a federal district judge in Washington, D.C., as part of a challenge to Mr. Trump’s efforts to deport migrants under the Alien Enemies Act. That case ultimately landed before the Supreme Court.
The two plaintiffs were returned to the jail, where they remain confined and “under threat of imminent removal,” according to Hellerstein’s opinion. The migrants brought a challenge under habeas corpus in early April in the Southern District of New York on behalf of themselves and other noncitizens in the region at risk of deportation under the Alien Enemies Act, and Hellerstein agreed to temporarily block the Trump administration from removing them from the U.S. under the president’s proclamation unless they received a notice in English and Spanish and a hearing.
His temporary order was to remain in place while he considered the Venezuelan migrants request for a preliminary injunction, which he granted Tuesday after finding that absent such relief, they would be deported to El Salvador’s Terrorism Confinement Center, or CECOT. Hellerstein said that once there, “they would endure abuse and inhumane treatment with no recourse to bring them back.”
In his opinion, Hellerstein first called the notice provided by immigration officers to those subject to removal under the Alien Enemies Act a “fleeting affair” and a “bare bones form letter.”
“Petitioners have not been given notice of what they allegedly did to join TdA, when they joined, and what they did in the United States, or anywhere else, to share or further the illicit objectives of the TdA,” Hellerstein wrote. “Without such proof, petitioners are subject to removal by the executive’s dictate alone, in contravention of the AEA and the constitutional requirements of due process.”
The judge said that the procedures used by the Trump administration have already led to the wrongful removal of at least two migrants to CECOT. One of those migrants is Kilmar Abrego Garcia, a Maryland man who the Trump administration admitted was mistakenly removed to El Salvador as a result of an “administrative error.” A federal judge, U.S. appeals court and the Supreme Court have said the U.S. has to facilitate his release from Salvadoran custody, but the Trump administration has claimed it’s up to El Salvador to return him.
Hellerstein also said that the grounds for Mr. Trump’s proclamation — that Tren de Aragua has engaged in either a war, invasion or predatory incursion of the U.S. — “do not exist.”
“There is nothing in the AEA that justifies a finding that refugees migrating from Venezuela, or TdA gangsters who infiltrate the migrants, are engaged in an ‘invasion’ or ‘predatory incursion,'” he wrote. “They do not seek to occupy territory, to oust American jurisdiction from any territory, or to ravage territory. TdA may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion.”
The Trump administration can appeal the decision.
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Nicole Sganga and
contributed to this report.
