Fifth Circuit considers Trump's use of Alien Enemies Act to deport immigrants

(CN) — In a hearing Monday in New Orleans, Louisiana, on whether the Trump administration can invoke the Alien Enemies Act to summarily remove Venezuelans it declares are members of the gang Tren de Aragua, Fifth Circuit Judge Andrew Oldham indicated he believes courts can’t review the government’s determination that an individual is a part of the gang.

The case is one of several filed by the American Civil Liberties Union seeking to block the Trump administration from using the centuries-old law to deport Venezuelan nationals. In March, the administration used the law to send 137 Venezuelan men it claimed were Tren de Aragua, or TdA, members to El Salvador to be held in the Central American nation’s notorious Terrorism Confinement Center (CECOT).

News reporting has raised significant questions about the validity of the evidence used by the government to substantiate that those individuals are part of TdA. A CBS investigation found that 75% of the Venezuelans sent to CECOT had no criminal record and that the government relied on evidence like tattoos to establish TdA membership. One man sent to CECOT was reportedly labeled as a TdA member because he had crown tattoos with the words “mom” and “dad,” and the family of another CECOT prisoner claims he was wrongly determined to be part of TdA because of an autism awareness tattoo he got in support of his autistic younger brother.

In an exchange with Justice Department attorney Drew Ensign about whether the government’s procedure for notifying immigrants that they are subject to removal under the Alien Enemies Act allows them sufficient time to seek habeas review, Oldham suggested that such review couldn’t involve second guessing the government’s factual determination that the individual is a TdA member.

Oldham, who was appointed by President Donald Trump in his first term, pointed to the U.S. Supreme Court’s ruling in the World War II Alien Enemies Act case Ludecke v. Watkins that the government’s determination that a citizen of an enemy nation was “dangerous” and therefore removable under an Alien Enemies Act proclamation was not subject to judicial review.

“Ludecke says you don’t get judicial determination of whether you’re actually dangerous,” Oldham said. “So why would the habeas proceeding involve a factual dispute over whether you’re a member of TdA?”

Ensign replied that he had “some trouble understanding that myself,” but he said the Supreme Court’s recent decision in J.G.G. v. Trump , which said that individuals subject to removal under the act are entitled to judicial review as to whether they are actually alien enemies, “seems to anticipate that you would be able to get individualized review about whether you are, in fact, a member of TdA.” Ensign said the government had crafted its notice policy with that premise in mind.

Oldham joined two other judges — U.S. Circuit Judge Leslie Southwick, a George W. Bush appointee, and U.S. Circuit Judge Irma Carrillo Ramirez, a Joe Biden appointee — on a Fifth Circuit panel hearing the case.

The Alien Enemies Act is an 18th century law permitting the president to detain or deport noncitizens from enemy nations “whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” It has been invoked only a handful of times in U.S. history and, before this year, was last used during WWII.

In March, Trump issued a proclamation declaring that Venezuelan citizens in the U.S. that the government determines to be members of TdA are subject to removal under the act. Trump declared that the gang has close ties with Venezuelan President Nicolás Maduro and that it operates as a “hybrid criminal state.”

“TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States,” Trump wrote in the declaration.

But several federal judges have found that the proclamation’s assertions are not sufficient to authorize the invocation of the Alien Enemies Act. At Monday’s hearing, ACLU attorney Lee Gelernt argued that the act requires there to be actual military conflict between the U.S. and a foreign nation, which he said the government has not claimed is occurring in this case. The ACLU is seeking an order blocking the Trump administration from using the proclamation to deport Venezuelan nationals in the Northern District of Texas while litigation challenging the proclamation proceeds.

“I think the government is not claiming we’re in an armed conflict with Venezuela because they understand the implications,” Gelernt said. “If we really were in a military conflict with Venezuela, it would mean our military could shoot TdA members because they’d be combatants. It would mean the Geneva Convention would kick in. We’d have to treat people under the Geneva Convention, we would have to go to Congress and all series of things. So I think the government’s trying to have it both ways.”

Gelernt argued that the activities the government claims TdA is engaged in fall under the realm of crime and law enforcement, not military conflict.

But Ensign told the panel that TdA “is not an ordinary criminal gang” and that it is “hopelessly enmeshed with the Maduro regime.”

“The president’s proclamation is plainly a lawful exercise of his extensive power under the Alien Enemies Act,” Ensign said.