DC Circuit declines to lift judge's order freezing Venezuelan deportation flights

WASHINGTON (CN) — A D.C. Circuit panel Wednesday denied the Justice Department’s request to lift a federal judge’s temporary restraining order preventing the deportation of any migrants under the Alien Enemies Act.

The three-judge panel ruled 2-1 to deny the Trump administration’s request to halt Chief U.S. District Judge James Boasberg’s temporary restraining order after the government sent 137 Venezuelan migrants accused of being in the Tren de Aragua gang to an infamous mega-prison in El Salvador.

Wednesday’s decision is the latest in the fast-moving case, which began March 15 when the American Civil Liberties Union sued to prevent the deportation of five Venezuelan migrants who have no ties to the violent gang, including some who maintain they were only picked up because they have tattoos.

U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, wrote in a concurring statement that she thought Boasberg had taken the appropriate action by freezing the deportations, but said that the appeals court did not have jurisdiction to review the temporary restraining order, which is normally an unappealable action.

She said that the stay was clearly necessary considering the “great and truly irreparable harm” the plaintiffs would suffer without one, as the Justice Department made clear it would move to immediately deport the plaintiffs and other detainees to a jail with a “notorious reputation for human rights abuses and disappearances.”

“Worst of all, the government has confessed that its preference that plaintiffs use habeas corpus to challenge their eligibility for Alien Enemies Act removal is a phantasm: The government’s position at oral argument was that, the moment the district court’s temporary restraining orders are lifted, it can immediately resume removal flights without affording plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone file a writ of habeas corpus or obtain any review of their legal challenges to removal,” Henderson wrote.

“It is irreparable injury to reduce to a shell game the basic lifeline of due process before an unprecedented and potentially irreversible removal occurs,” she added.

U.S. Circuit Judge Justin Walker, a Donald Trump appointee, dissented in a statement, explaining that he thought the plaintiffs should have brought their suit as a habeas corpus action in the Southern District of Texas, where they were held.

“The government has also shown that the district court’s orders threaten irreparable harm to delicate negotiations with foreign powers on matters concerning national security,” Walker wrote. “And that harm, plus the asserted public interest in swiftly removing dangerous aliens, outweighs the plaintiffs’ desire to file a suit in the District of Columbia that they concede they could have brought in Texas.”

The three-judge panel heard arguments in the case on Monday, when the panel seemed split on the extraordinary nature of the case. U.S. Circuit Judge Patricia Millett, a Barack Obama appointee, noted that the Alien Enemies Act had only been used three times before, and never during peacetime.

Meanwhile, Walker said Boasberg’s action itself was extraordinary, loosely comparing it a 1970 decision by U.S. District Judge Orrin Grimmell Judd enjoining President Richard Nixon from bombing Cambodia during the Vietnam War. Walker noted that decision was halted by the Second Court of Appeals within two days. Judd’s order was briefly upheld by Supreme Court Justice William Douglas, but quickly overturned by the full high court a mere six hours later.

At the center of the case is Obama appointee Boasberg’s March 15 order that prevented further deportations and was intended to call back two active flights that were in the air during an emergency hearing that Saturday.

The government refused to turn the two flights around that left mere minutes after an emergency hearing began, arguing that the planes were in international waters when the order went into effect.

Millett expressed concern on Monday that if it vacated Boasberg’s order, approximately 300 similarly situated individuals would be “lined up and packed on planes without notice.”

Deputy Assistant Attorney General Drew Ensign said the government’s position was that under the Alien Enemies Act, it is not required to provide notice before initiating the removal process. Instead, the individuals could file an habeas corpus claim to challenge their removals.

“Nazis got better treatment under the Alien Enemies Act, they had hearing boards before people were removed,” Millett said. “Here, there’s nothing in there about hearing boards, there’s no regulations. People weren’t given notice, they weren’t told where they were going.”

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