Over a dissent by two of the court’s conservative justices, the Supreme Court temporarily barred the Trump administration from removing a group of Venezuelan men currently in immigration custody in the northern region of Texas under an 18th century wartime law. The prohibition came in an unusual overnight order that followed a Friday evening appeal from lawyers representing the men, who told the justices that “dozens or hundreds” of detainees “are in imminent and ongoing jeopardy of being removed from the United States without notice and opportunity to be heard, in direct contravention of” a ruling by the justices less than two weeks ago.
In a brief unsigned order released to reporters just before 1 a.m. Saturday morning, the court noted that the dispute “is currently pending before” the U.S. Court of Appeals for the 5th Circuit. Once that court acts, the court explained, Solicitor General D. John Sauer should file a response in the Supreme Court to the detainees’ request to block their removal “as soon as possible.” (After the justices issued their order, the 5th Circuit turned down the detainees’ request for a stay, calling it “premature.”) But, the court emphasized in clear language, the government should not “remove any member of the putative class of detainees from the United States until further order of this Court.”
Justices Clarence Thomas and Samuel Alito dissented from the court’s order. They did not provide any explanation for their votes on Saturday morning, but the order indicated a statement from Alito would follow – a relatively rare move, but not unprecedented in light of the hour at which the order was issued and the speed with which the court acted.
The dispute is the latest chapter in the challenges to the Trump administration’s efforts to remove noncitizens who are designated as members of a Venezuelan gang under a March 15 executive order issued by President Donald Trump. The order relied on the Alien Enemies Act, a 1798 law that allows the president to detain or deport citizens of an enemy nation without a hearing or any other review by a court if Congress declares war or there is an “invasion” or “predatory incursion.” The law has only been invoked three times in U.S. history, during the War of 1812, World War I, and World War II.
Trump’s March 15 order found that a large Venezuelan gang known as Tren de Aragua is “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” As a result, he ordered, any Venezuelans who are 14 years of age or older can be “apprehended, restrained, secured, and removed as Alien Enemies.”
A group of noncitizens in immigration custody went to federal court in Washington, D.C., even before Trump’s order was issued, seeking to stave off their removal and to challenge their designation under the Alien Enemies Act.
Their case was assigned to U.S. District Judge James Boasberg, who barred the government from removing the individual plaintiffs in the case and, later, anyone else under the Alien Enemies Act. In a hearing on the same day that the order was issued, Boasberg ordered the government to return any flights to remove noncitizens that had already taken off to return to the United States.
News reports indicated that more than 200 noncitizens were taken from the United States to El Salvador on March 15, with their planes landing there after Boasberg issued his written order. They were taken to El Salvador’s notorious Terrorism Confinement Center (CECOT), a maximum-security “mega” prison, where their heads were shaved.
After the U.S. Court of Appeals for the District of Columbia Circuit turned down the Trump administration’s request to pause Boasberg’s order, then-Acting Solicitor General Sarah Harris went to the Supreme Court. She told the justices that the dispute “presents fundamental questions about who decides how to conduct sensitive national-security operations in this country – the President . . . or the Judiciary.”
In a ruling on April 7, the Supreme Court granted the Trump administration’s request to put Boasberg’s order on hold. It explained that challenges to a designation under the Alien Enemies Act must be brought as a petition for habeas corpus – that is, a challenge to the legality of an individual’s detention – in the place where the detainees are being held (here, northern Texas), rather than in Washington as a challenge under the federal law governing administrative agencies.
The court also indicated that anyone detained under the Alien Enemies Act “must receive notice after the date of this order that they are subject to removal under the” law. Moreover, the court added, the government must provide that notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
The detainees went to court in the Northern District of Texas on April 16, asking a federal judge there to temporarily block the removal of Venezuelan men in immigration custody there under the Alien Enemies Act.
U.S. District Judge James Wesley Hendrix, a Trump appointee, on Friday rejected the men’s request to block their removal under the AEA, after the government told the court that it would not try to remove the two men individually named in the complaint while their habeas petitions are pending. Hendrix indicated that in light of the Supreme Court’s April 7 ruling and “the government’s general representations about the procedures necessary in these cases,” the broader group of Venezuelan detainees is likely “also not facing such an imminent threat.”
But since then, lawyers for the detainees wrote, Venezuelan men in immigration custody in Texas have been notified that their removal under the AEA could be imminent. “Removal without sufficient notice and time to seek habeas relief,” the lawyers contended, “is in clear violation of” the Supreme Court’s April 7 ruling. The government, the lawyers said, has established a “lightning-fast timeline.” Moreover, they noted, to the extent that the government has notified the men of its intent to remove them, those notices are only in English – even though the “overwhelming number of people designated under the AEA speak only Spanish” – and do not tell the men that they can challenge their designation as “alien enemies” in federal court. The government also is not providing any notification to the men’s lawyers, they added.
“Emergency relief is necessary,” the lawyers emphasized, “not only to preserve the status quo and prevent permanent and irreversible harm” to the men currently in immigration custody who would be covered by the court’s order, “but also to preserve the court’s jurisdiction, in light of the government’s position that it need not return individuals, even those mistakenly removed” – a reference to the case of Kilmar Abrego Garcia, a Maryland man whom the Trump administration concedes was deported to El Salvador as a result of an administrative error.
The lawyers for the Venezuelan men stressed that they did not seek to stop the government from prosecuting anyone who has committed a crime or removing anyone who can be legally removed under federal immigration laws. They were seeking, they said, only to have the Supreme Court “preserve the status quo so that proposed class members will not be sent to a notorious prison in El Salvador before the American judicial system can afford them due process.”
The Trump administration is likely to file its response to the detainees’ appeal soon; the detainees will then have the opportunity to file a reply. The Supreme Court could then act on the detainees’ request at any time.
