DC Circuit grills DOJ over Venezuelan deportation flights amid heated court battle

WASHINGTON (CN) — A D.C. Circuit panel interrogated the Justice Department on Monday over whether two plane-loads of Venezuelan immigrants accused of being gang members were given any chance to challenge that determination before being deported.

The appeal stems from an ongoing dispute at the U.S. District Court for the District of Columbia challenging President Donald Trump’s use of the Alien Enemies Act to send 137 individuals accused of being part of the Tren de Aragua gang to an infamous mega prison in El Salvador.

The Justice Department requested a three-judge panel lift Chief U.S. District JudgeJames Boasberg’s temporary restraining order preventing the government from deporting five specific plaintiffs and aimed to halt any additional flights.

The government apparently defied the latter part of Boasberg’s order, refusing to turn two flights around that left mere minutes after an emergency hearing began on March 15, and has argued that the planes were in international waters when the order went into effect.

U.S. Circuit Judge Patricia Millett expressed concern on Monday that if it vacated the Obama appointee’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,” the Obama appointee 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.”

“Well, Your Honor, we certainly dispute the Nazi analogy,” Ensign said.

Ensign argued that Boasberg’s order was an “unprecedented and enormous intrusion” upon Trump’s presidential powers.

“It enjoins the president’s exercise of his war and foreign affairs powers under the Alien Enemies Act, and does so in a manner that purports to direct operations outside the United States’ borders and in a manner that could intrude upon sensitive diplomatic negotiations,” Ensign said.

American Civil Liberties Union attorney Lee Gelernt, representing the class of Venezuelan migrants, urged the court to deny the Justice Department’s appeal, allow Boasberg to continue his fact-finding efforts and wait for an appeal on any eventual preliminary injunction.

U.S. Circuit Judge Justin Walker, a Trump appointee, was skeptical that Gelernt was right to bring the case in Washington, rather than Texas, where the migrants still in the U.S. were being held. Walker repeatedly suggested that the plaintiffs could have filed a habeas petition instead.

Gelernt argued that there was “voluminous” case law that showed a habeas petition was not necessary unless the challenge was seeking the release of a prisoner. In this case, the migrants were simply challenging their transfer to El Salvador.

Ensign said that Boasberg had overstepped his authority and compared the order to one requiring the redeployment of an aircraft carrier from the South China Sea to the Persian Gulf, an authority held squarely by the president.

Millett seemed unconvinced, noting that federal courts clearly had authority to adjudicate any challenges regarding the accusations that the Venezuelan migrants were members of Tren de Aragua.

During a heated exchange with Ensign, Millett tried to pinpoint whether the 137 migrants had any notice or time between Trump’s proclamation invoking the Alien Enemies Act and being loaded onto the planes.

Ensign could not answer based on the evidence in the record, but instead pointed to news reports about the flights that suggested there was a brief window for the individuals to challenge their removal.

Millett was not reassured, saying that it appeared the government could determine she was a part of a transnational gang, put her on a plane and ship her to El Salvador, all without providing her due process.

Even if the president had the power to proclaim members of the gang must be deported, it was up to his subordinates to see that it was implemented correctly, she said, rather than pick up people not associated or even victims of the gang.

“The president has to abide by the Constitution, just like everyone else,” Millett said.

The three-judge panel was rounded out by U.S. Circuit Judge Karen Henderson, a George H.W. Bush appointee.

Earlier on Monday, Boasberg denied a DOJ request to lift his temporary restraining order, emphasizing the fact that his order only prevented removals under the Alien Enemies Act, not any and all deportation flights.

“It is important to stress once again that the order was narrow: it prevented defendants only from removing the plaintiff class on the sole basis of the proclamation,” Boasberg said. “In other words, the order did not prevent defendants from removing anyone — to include members of the class — through other immigration authorities.”

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