Plaintiffs suing the Trump administration over use of a war authority to deport alleged gang members warned that failing to block the president from its use would mean anyone could be treated as an enemy alien.
The lawyers for Venezuelan migrants suing the government said Tuesday in an appellate court filing: “The implications of the government’s position are staggering. If the President can designate any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there.”
Those subject to the 1798 Alien Enemies Act can be summarily arrested, detained and deported, without the due process protections outlined in U.S. immigration law, including opportunities to see a judge and request asylum. Instead, they may be treated as enemy aliens and processed under America’s wartime laws. President Trump invoked the act Saturday, and used it to send two planes carrying alleged Tren de Aragua gang members to a prison in El Salvador.
In a hearing Saturday, D.C. U.S. Chief District Judge James Boasberg blocked their deportation, prompting an immediate Justice Department appeal.
On Tuesday, an Immigration and Customs Enforcement officer provided new details about the Trump administration’s deportation flights of alleged gang members, but continued to argue the government had a right to reject a judge’s order directing the planes to return to the U.S., even if they were already in the air.
According to a sworn declaration by Robert Cerna, the acting field office director of ICE’s enforcement and removal operations, the two planes “departed U.S. territory and airspace before 7:25 p.m.” on Saturday — 40 minutes after D.C. District Chief Judge James Boasberg verbally ordered the planes to be returned to the U.S. during a hearing Saturday evening.
The government reiterated Tuesday that because the planes were over international waters and airspace by the time the judge ordered them to turn around, Boasberg no longer had jurisdiction over the migrants.
Attorneys for the Trump administration had also argued in a hearing on Monday that Boasberg did not have authority to redirect the planes because the judge had not put his order demanding the planes to return to the U.S. in writing. The judge responded that his order applied to the planes, regardless of where they were in the air.
Cerna said the government’s invocation of the Alien Enemies Act to justify the removal of alleged Tren de Aragua members was signed Friday evening, a day before the flights were publicly announced on Saturday by the White House.
His testimony is part of a court-mandated series of responses to Boasberg, who was frustrated by the government’s lack of details on the flights and deportation operations during the hearing on Monday. The rest of the answers Boasberg requested are likely to remain private because of “operational issues,” a Justice Department attorney told the court, declining to provide the court with this information publicly.
Those details are likely to include whether additional planes have left the U.S. with alleged Tren de Aragua gang members, a timeline showing when the flights took off from the U.S. and landed in El Salvador and a count of remaining members of the gang in U.S. custody.
Cerna’s sworn testimony did not provide all of this information, though he noted that 54 members of Tren de Aragua are in detention in the U.S., and approximately 172 are on the non-detained docket, which means they are not being detained by the government as their immigration proceedings continue. There are also approximately 32 are in criminal custody who have active detainers — that is, ICE has asked that they be held for up to 48 hours after they’re scheduled to be released.
Despite Boasberg’s ruling, 261 people were deported to El Salvador Saturday, 137 of whom were removed under the Alien Enemies Act over alleged gang ties, a senior administration official said.
The federal civil lawsuit against Mr. Trump and other administration officials was filed by five Venezuelan men in immigration custody in Texas and New York local jails.
Boasberg’s ruling prevents the deportations of the plaintiffs and migrants for 14 days.
