On Monday, lawyers from the Justice Department informed a federal appeals court panel in Washington, D.C., that migrants identified as Venezuelan gang members have the right to hearings to contest their designation under the Alien Enemies Act. However, U.S. officials are not required to inform these migrants of their “alien enemy” status or provide them with an opportunity to request court hearings before their removal from the country, as clarified by a government lawyer during the proceedings.
This assertion seemed to perplex at least one judge on the three-member panel of the U.S. Court of Appeals for the D.C. Circuit. The court is currently deliberating on a lower court's ruling that temporarily prohibited the Trump administration from invoking the Alien Enemies Act for the deportation of migrants allegedly linked to the violent Tren de Aragua gang. Recently, the administration deported over 130 migrants to a prison in El Salvador under this statute, which has historically been used exclusively during wartime.
Families and legal representatives of the deported individuals contend that many of the men lacked any gang affiliations or criminal backgrounds, and were initially informed they would be returned to their home countries rather than sent to El Salvador. The government has acknowledged that “many” of these individuals did not possess criminal records in the United States.
Judge Patricia Millett expressed her concerns during the hearing, stating, “There were no procedures in place to notify those people. Nazis got better treatment,” referencing the established hearing boards for individuals targeted for removal under the same act during World War II. In response, Deputy Assistant Attorney General Drew Ensign countered, “We certainly dispute the Nazi analogy.”
On March 15, the Trump administration executed three flights carrying 261 migrants, accused of gang affiliations, to a Salvadoran prison as part of an agreement with Salvadoran officials. Of those, 137 were deported under the Alien Enemies Act, a law traditionally used to expedite deportation for citizens of a country considered hostile.
On the same day, Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued a temporary restraining order that halted the administration from utilizing the Alien Enemies Act for deportations until further hearings could be held. He also mandated that any planes already airborne carrying deportees should return to the United States.
As the government contended in court, Boasberg allegedly lacked the authority to prevent the deportations and had no jurisdiction to command planes already over international waters to return. The administration insisted that the third flight was transporting migrants under conventional immigration laws, not under the Alien Enemies Act. In light of these developments, discussions surrounding potential impeachment of Judge Boasberg emerged, a rare action intended to address judicial misconduct. Chief Justice John G. Roberts Jr. publicly advised against such calls, asserting that appeals courts serve as the appropriate venue for legal disputes.
During the hearing, lawyers representing the migrants submitted sworn statements from a Nicaraguan man and a Venezuelan woman who had been on the deportation flights but were returned to the U.S. the following day—not due to Boasberg’s order, but because the agreement with the Salvadoran prison only accommodated Venezuelan and Salvadoran men.
These statements appear to contradict the Trump administration's claim that returning individuals was not feasible. An ACLU attorney wrote in the filing that the Venezuelan woman reported overhearing U.S. officials discussing Boasberg’s order while on the deportation flight, revealing, “There is an order saying we can’t take off, but we already have.”
The central question before the appellate court was not whether the Trump administration had disregarded Boasberg’s order, but whether the judge had overstepped his authority by blocking deportations under the Alien Enemies Act while he deliberated on a more permanent resolution. Judge Millett, appointed by President Barack Obama, appeared to concur that the Venezuelan migrants were entitled to due process to determine their gang affiliations.
She stated, "They are disputing and challenging ... the capacity of the U.S. to release them to Salvadoran jails without any advance notice or due process.” Meanwhile, Judge Justin Walker, appointed by Trump, questioned whether D.C. was the appropriate venue for the ACLU and other advocacy groups to file their lawsuit, suggesting it might have been better suited for Texas, where the five plaintiffs are currently detained.
Judge Boasberg had previously issued a temporary block on the Trump administration's ability to remove individuals under the Alien Enemies Act, leading to the removal of five migrants from the planes before their departure from the U.S. Boasberg later expanded his order to encompass the deportations of any other alleged Tren de Aragua members under the act. However, by that point, the flights had already taken off.
On Monday, Judge Boasberg again rejected the administration's request to lift his order, emphasizing that halting further deportations while litigation is ongoing poses no threat to public safety. His ruling does not prevent authorities from detaining migrants suspected of gang affiliations or pursuing removal through standard immigration processes.
The Justice Department has indicated plans to extradite three individuals believed to be members of the Tren de Aragua gang to Chile under the Alien Enemies Act. The impact of the appellate court's decision on the migrants deported to El Salvador on March 15 remains uncertain. However, it is likely to influence how the Trump administration utilizes the Alien Enemies Act moving forward, a matter that could eventually escalate to the Supreme Court.
During much of the hearing, Ensign argued that Boasberg’s ruling encroached on presidential powers, asserting the judge had no right to obstruct the flights. He largely sidestepped questions related to the due process rights of the migrants. ACLU attorney Lee Gelernt stressed the significant implications of deporting individuals to foreign prisons without providing them a chance to contest their status, stating, “The implication of not giving people a chance to contest it are extraordinary.”
