U.S. Homeland Security Secretary Kristi Noem delivers remarks to staff at DHS headquarters in Washington on Jan. 28, 2025.  (Photo by Manuel Balce Ceneta-Pool/Getty Images)

WASHINGTON — A federal judge in California on Monday blocked the U.S. Department of Homeland Security from terminating the temporary protected status of more than 350,000 Venezuelans next week.

The group was set to lose deportation protections by April 7 after DHS Secretary Kristi Noem, in her first week in office, vacated an extension of  protections put in place by the Biden administration.

The order does not apply to a separate group of 250,000 Venezuelans who are set to lose their status in September.

U.S. District Judge Edward Chen of the Northern District of California said the groups that brought the suit against the Trump administration are likely to succeed in their claims. He noted that Noem’s decision to vacate the temporary protected status for Venezuelans was not only arbitrary and capricious, but would harm the TPS holders, cost the U.S. billions in economic loss and harm public health and safety in U.S. communities.

DHS did not immediately respond to States Newsroom’s request for comment.

Program for immigrants in danger

TPS allows nationals from countries deemed too dangerous to return to remain in the U.S. Those with the status have deportation protections and are allowed to work and live in the U.S. for 18 months, unless extended by the DHS secretary.

Under Biden administration orders, protections were extended until October 2026 for two groups of Venezuelans, one initially assigned temporary protected status in 2021 and another in 2023.

Chen’s order applies only to the group who first gained status in 2023. The 2021 group is also challenging the Trump administration’s revocation of their status, but that group’s status is in place until September.

Chen noted that the Trump administration “failed to identify any real countervailing harm in continuing TPS for Venezuelan beneficiaries.”

Chen was appointed by President Barack Obama in 2011.

Gang activity cited

The groups who brought the suit against Noem represent TPS holders from Venezuela.

The groups argued that Noem’s decisions to vacate the 2023 protections and end TPS for Venezuelans were arbitrary and capricious.

They also argued that the Trump administration violated the Constitution’s equal protection clause, arguing that the decisions to vacate the extension and terminate protections “were motivated, at least in part, by intentional discrimination based on race, ethnicity, or national origin.”

Noem cited gang activity as her reason for not extending TPS for the 2023 group of Venezuelans.

The Trump administration has invoked the Alien Enemies Act to quickly deport any Venezuelan national 14 years or older who is suspected of having ties to the Tren de Aragua gang. A federal judge has placed a temporary restraining order on use of the wartime law.

‘Classic example of racism’

In his order, Chen said that while attorneys on behalf of the Trump administration argued that there is the threat of the Tren de Aragua gang, “it has made no showing that any Venezuelans TPS holders are members of the gang or otherwise have ties to the gang.”

Chen also rejected the Trump administration’s argument that Noem had the legal authority to vacate the extension of protections.

“The unprecedented action of vacating existing TPS (a step never taken by any previous administration in the 35 years of the TPS program), initiated just three days after Secretary Noem took office, reverses actions taken by the Biden administration to extend temporary protection of Venezuelan nationals that have been in place since 2021,” he wrote.

In granting the nationwide pause, Chen noted the groups had a strong claim under the equal protection clause because Noem has “made sweeping negative generalizations about Venezuelan TPS beneficiaries.”

“This is evident not only in what she said, but also in the fact that she decided to take en masse actions against all Venezuelan TPS beneficiaries, who number in the hundreds of thousands,” he said. “Acting on the basis of a negative group stereotype and generalizing such stereotype to the entire group is the classic example of racism.”

This is not the first time the Trump administration has tried to end TPS designation for certain nationals. During Trump’s first term, DHS tried to end TPS for Haiti, Nicaragua, El Salvador and Sudan, but the courts blocked those attempts in 2018.

Noem has also moved to end TPS for nationals from Haiti. There are also legal challenges to that decision. 

The U.S. Supreme Court building. (Photo by Ariana Figueroa/States Newsroom)

WASHINGTON — The Trump administration submitted an emergency appeal to the U.S. Supreme Court on Friday in an effort to resume the rapid deportations of Venezuelans accused of gang ties under a wartime law that a lower court blocked.

Acting U.S. Solicitor General Sarah Harris argued in a brief to the Supreme Court that a federal judge’s temporary restraining order this month, and an appeals court ruling Wednesday upholding it, wrongly denied President Donald Trump the authority to make decisions about national security operations, including the removal of Venezuelan nationals the administration says are subject to the Alien Enemies Act of 1798.

“The district court’s orders have rebuffed the President’s judgments as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations,” Harris wrote in her request to the court.

The Alien Enemies Act had only been invoked three times, during the War of 1812, World War I and World War II.

The Trump administration has tried to use it in a novel way, when the nation is not officially at war. The administration designated the Tren de Aragua – a gang that originated in Venezuela – as a foreign terrorist group, and argued that any Venezuelan nationals aged 14 and older with suspected ties to the gang are subject to the proclamation.

U.S. District Judge James E. Boasberg placed a temporary restraining order on the Trump administration’s use of the law this month, and the U.S. Court of Appeals for the District of Columbia Circuit upheld the order this week. The administration asked the Supreme Court to lift the order.

“As long as the orders remain in force, the United States is unable to rely on the Proclamation to remove dangerous affiliates with a foreign terrorist organization—even if the United States receives indications that particular (Tren de Aragua) members are about to take destabilizing or infiltrating actions,” Harris said Friday.

Extending restraining order

Boasberg’s temporary restraining order placed on the use of the Alien Enemies Act is set to expire Saturday. The American Civil Liberties Union, which brought the suit, requested that order be extended for an additional two weeks.

The ACLU also plans to request Boasberg issue a preliminary injunction, which would block the administration from deportations under the act until the lawsuit is complete. A hearing is set for April 8.

Boasberg has rejected the Trump administration’s move to lift his restraining order, on the grounds that those subject to the Alien Enemies Act should have due process to challenge those accusations.

At the D.C. Circuit this week, Department of Justice attorneys for the Trump administration argued that those subject to the proclamation do not need to be notified they are being removed under the Alien Enemies Act. The Trump administration also argued that those who fall under the Alien Enemies Act can bring a challenge of their detention under a habeas corpus claim.

Defied verbal order

The White House quietly implemented the act on March 15 and a verbal restraining order given by Boasberg that day to block it went into effect hours later.

In that order, Boasberg barred the Trump administration from applying the act but three deportation planes landed in El Salvador after the order was issued. The Trump administration has argued that his verbal order was not enforceable.

Boasberg also ordered that anyone subject to the Alien Enemies Act be returned to the U.S., but federal immigration agents took more than 250 men aboard the three flights to a notorious prison in El Salvador.

Boasberg has vowed to determine if the Trump administration violated his restraining order in sending the deportation planes to El Salvador, but Attorney General Pam Bondi invoked the “state secrets privilege” to refuse to answer detailed questions about the flights.

Friday’s emergency request is one of several immigration-related appeals the Trump administration has made to the high court, such as the request to lift several nationwide injunctions placed on the president’s executive order that ends the constitutional right of birthright citizenship.

White House Border Czar Tom Homan talks with reporters on the driveway outside the West Wing on March 17, 2025, in Washington, D.C. (Photo by Chip Somodevilla/Getty Images)

WASHINGTON — The Trump administration lost a round Wednesday night in its attempts to use a wartime law for deportations of Venezuelans accused of gang ties.

The 2-1 decision by a U.S. District Court of Appeals for the District of Columbia Circuit panel will keep in place a temporary restraining order to prevent any more deportations of Venezuelan nationals ages 14 and older under the Alien Enemies Act of 1798, invoked by President Donald Trump.

The Trump administration sent three deportation flights carrying more than 250 men to a notorious mega-prison in El Salvador after the restraining order was issued.

Judge Patricia A. Millett, a nominee of President Barack Obama, and Judge Karen LeCraft Henderson, a nominee of President George H.W. Bush, ruled that the Department of Justice did not meet the requirements to lift the order.

Henderson also noted a presidential proclamation signed by Trump did not set up a due process to allow those accused under the Alien Enemies Act to challenge it.

Judge Justin R. Walker, who was appointed by Trump, agreed with the Trump administration’s request to block the restraining order.

Shortly after the appeals court order, the American Civil Liberties Union, which brought the suit against the Trump administration, filed a request with the U.S. District Court for the District of Columbia, asking for the temporary restraining order to be extended for another 14 days.

The ACLU noted it plans to file a preliminary injunction request on Friday “in which they intend to submit additional factual material so that there is a more complete record.”

A hearing on the preliminary injunction is set for April 8.

Bondi and state secrets privilege

Wednesday’s decision comes after Attorney General Pam Bondi on Monday invoked the “state secrets privilege” to block U.S. District Judge James E. Boasberg from obtaining additional information about deportation flights carried out under the Alien Enemies Act.

The privilege is a common-law doctrine that protects sensitive national security information from being released.

Boasberg has sought detailed information about the timing of the three deportation planes to determine if the Trump administration violated his order.

From the bench on March 15, he gave a verbal order that blocked the use of the act and ordered anyone on the deportation flights subject to the Alien Enemies Act to be returned to the United States.

The Trump administration has said only two of the three planes carried Venezuelans subject to the proclamation.

Due process

Henderson, in her opinion, noted that the Trump administration “has yet to show a likelihood of success on the merits.”

In oral arguments before the appeals court Monday, the Department of Justice argued that the U.S. District Court lacked the jurisdiction to hear the case and that the Trump administration’s “conduct is lawful under the plain text of the Alien Enemies Act.”

Henderson also raised due process issues. She noted that the temporary restraining order is simply pausing “the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal.

“In the government’s view, based on its allegation alone, Plaintiffs can be removed immediately with no notice, no hearing, no opportunity—zero process—to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered,” she said.

Millett in her opinion questioned why the Trump administration would ask for an emergency ruling to lift the order from Boasberg because “the government’s persistent theme for the last ten days has been that the district court’s oral direction regarding the airplanes was not a (Temporary Restraining Order) with which it had to comply.”

“But the one thing that is not tolerable is for the government to seek from this court a stay of an order that the government at the very same time is telling the district court is not an order with which compliance was ever required,” she said.  “Heads the government wins, tails the district court loses is no way to obtain the exceptional relief of a (Temporary Restraining Order) stay.”

Millett also criticized the Department of Justice for appealing to the circuit court first before trying the district court.

“I would deny the stay on this additional ground,” she said. “The government needs to play by the same rules it preaches. And it needs to respect court rules.”

Judge sides with DOJ

Walker, who appeared to align with the Department of Justice’s arguments on Monday, sided with the Trump administration.

In his opinion he reiterated his stance from Monday’s oral arguments.

Walker again argued that the right way for Venezuelans to object to detention under the Alien Enemies Act is a habeas corpus claim, which is used to challenge an unjust imprisonment, including immigration detention.

The original five men who brought the suit under the Alien Enemies Act, before the federal judge moved to a class suit, were in a detention center in Texas, rather than the District of Columbia.

“The problem for the Plaintiffs is that habeas claims must be brought in the district where the Plaintiffs are confined,” he said. “For the named Plaintiffs at least, that is the Southern District of Texas.”

Tren de Aragua gang

Border Czar Tom Homan said Monday that he was confident that the more than 250 Venezuelans on the deportation flights were members of the Tren de Aragua gang, according to White House pool reports.

Homan said that he got “assurances from the highest levels of (Immigration and Customs Enforcement) that” everyone on the planes were members of the Tren de Aragua.

“We’re talking about terrorists,” he said. “These are not good people.”

Immigration attorneys for the men and family members have said those sent to the mega-prison had no criminal record or were in asylum proceedings before an immigration judge. 

President of El Salvador Nayib Bukele said hundreds of Venezuelan migrants deported from the U.S. to a prison in his country under the Alien Enemies Act would perform hard labor for up to a year, potentially longer.  In this photo, he delivers a speech during the first press conference of the year at Casa Presidencial on Jan. 14, 2025, in San Salvador, El Salvador. (Photo by Alex Peña/Getty Images)

WASHINGTON — In new court briefings Thursday, attorneys for several Venezuelan immigrants say their clients either had no criminal record or had cases before an immigration judge when they were deported under the Trump administration’s wartime authority — despite a federal judge ordering the return of the flights to the United States.

Attorneys for four men who were sent to a notorious maximum security prison in El Salvador said their clients had two things in common: They were accused of being members of the Tren de Aragua gang under the Alien Enemies Act of 1798 the president invoked, and they all had tattoos.

Among those four men deported were a professional soccer player; a father whose son is a U.S. citizen; a political activist who protested the Maduro regime in Venezuela; and an asylum seeker. 

238 Venezuelans on flights

Last week, President Donald Trump invoked the Alien Enemies Act, which allowed the rapid deportation of Venezuelan nationals 14 and older who are suspected members of the Tren de Aragua gang.

“If the President can label any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there,” the American Civil Liberties Union, which originally filed the suit, wrote in recent court briefings.

The White House confirmed 238 Venezuelans were deported and flown to El Salvador, but is refusing to answer detailed questions about the timing of the March 15 flights, after a federal judge placed a temporary restraining order that same day on use of the wartime authority.

Thursday’s filings also included sworn statements from four attorneys who had clients initially on the deportation flights heading to the prison in El Salvador, but were removed before the plane left the U.S.

In separate accounts, the four men who disembarked the plane and questioned what was happening said they were told by an immigration official they had “won the lottery” because they were not being deported that day.

The eight exhibits by attorneys came just before a Friday hearing before U.S. District Court Judge James Emanuel Boasberg in the District of Columbia, who is pressing the government for more details on the timing of the two deportation flights. 

Hard labor

The prison that the men were taken to, known as the Centro de Confinamiento del Terrorismo, or CECOT, has concerned human rights groups like the Human Rights Watch.

The president of El Salvador, Nayib Bukele, wrote on social media that the men deported from the U.S. to his country would perform hard labor for up to a year, potentially longer. 

White House press secretary Karoline Leavitt said the U.S. government paid El Salvador $6 million to detain the men.

In a court filing with the ACLU, Juanita Goebertus, the director of the Americas Division of Human Rights Watch, said that “the Salvadoran government has described people held in CECOT as ‘terrorists,’ and has said that they ‘will never leave.’”

“Human Rights Watch is not aware of any detainees who have been released from that prison,” she said.

Tattoos of crowns, rosary, flowers

One of the men taken to CECOT is Jerce Reyes Barrios, a professional soccer player who marched in two political demonstrations protesting the regime of Venezuelan President Nicolás Maduro, his attorney, Linette Tobin, wrote.

Barrios came to the U.S. in 2024 using the CBP One app, a tool the Biden administration used to help migrants make appointments with asylum officers. The Trump administration shut down the app on the president’s first day in office and have repurposed the app as a self-deportation tool.

Tobin said that Barrios, who had no criminal record in the U.S. or Venezuela, applied for asylum and had a court hearing in April.

She said U.S. Immigration and Customs Enforcement accused Barrios of belonging to the Tren de Aragua gang because of his tattoos. He has a tattoo on his arm with a soccer ball and a crown on top, with a rosary.

“DHS alleges that this tattoo is proof of gang membership,” Tobin said. “In reality, he chose this tattoo, because it is similar to the logo for his favorite soccer team, Real Madrid.”

Another attorney, Austin Thierry, said his client, E.V., fled Venezuela after being tortured by officials for participating in a protest against the regime.

Since E.V. has been in ICE detention, “his partner and infant son have struggled to meet their expenses and maintain housing,” Thierry said, adding that his client’s son is a U.S. citizen.

“EV has various tattoos, such as tattoos of anime, flowers, and animals, that he chose to get for personal and artistic reasons,” Thierry said.

“E.V. also has a tattoo of a crown, which may be why ICE falsely accused him of gang membership. However, this crown is not related to Tren de Aragua but rather, a tribute to his grandmother whose date of death appears at the base of the crown.”

Asylum cases pending

Another immigration attorney, Katherine Kim, said her client, referred to as L.G., had a pending asylum case and that ICE alleged he was associated with Tren de Aragua.

She said L.G. denied being a member and has three tattoos.

“One is a rosary, the other is his partner’s name, and the third is a rose and a clock,” she said. “None of these tattoos are related to Tren de Aragua gang membership or membership in any other gang.”

Immigration attorney Osvaldo Caro-Cruz, said his client, JABV, fled Venezuela due to political persecution and applied for asylum through the CBP One app.

“His tattoos are a Rose, a Clock and a Crown with his son’s name on it,”  Caro-Cruz wrote in a court filing. “These are common in Venezuela and bear no exclusive association with gang affiliation.”

Caro-Cruz said he was able to determine that JABV was deported to the prison in El Salvador because the president, Bukele, published a video and JABV’s brother recognized him.

Tattoo artist

Another filing was by Solanyer Michell Sarabia Gonzalez, who said he fears his younger brother was sent to El Salvador.

Both brothers have asylum cases pending. When they went to their ICE check-in appointment, the younger one, 19-year-old Anyelo Jose Sarabia, was asked about his hand tattoo by an immigration official and later detained.

Sabaria has no criminal record and is a tattoo artist.

Gonzalez said he can no longer find his brother on the ICE detainee locator.  

“I am extremely concerned about the health and safety of my little brother,” he wrote in his court filing. 

U.S. Attorney General Pam Bondi testifies before the Senate Judiciary Committee during her confirmation hearing on Jan. 15, 2025. (Photo by Chip Somodevilla/Getty Images)

WASHINGTON — The U.S. Department of Justice on Tuesday refused to provide further details about deportation flights that were in flight when a federal judge issued an order blocking the invocation of the wartime law used to authorize the removals.

In new court filings, the Department of Justice said two deportation flights to El Salvador and Honduras were not subject to a restraining order from U.S. District Court Judge James Emanuel Boasberg because they were no longer in U.S. territory or airspace when the order was issued.

In a notice signed by Attorney General Pam Bondi, the Justice Department would not answer further questions about those flights, contradicting Boasberg’s order late Monday calling for the administration to answer four specific questions about details of the operation.

“The Government maintains that there is no justification to order the provision of additional information, and that doing so would be inappropriate, because even accepting Plaintiffs’ account of the facts, there was no violation of the Court’s written order (since the relevant flights left U.S. airspace, and so their occupants were ‘removed,’ before the order issued), and the Court’s earlier oral statements were not independently enforceable as injunctions,” according to the notice.

“The Government stands on those arguments.”

In response to the filing, Boasberg issued a new order, giving the administration until noon Eastern on Wednesday to give those details under seal.

Specifically, he is asking what times the flights took off from the United States, when they left U.S. airspace, when they landed in their designated countries, when those immigrants being deported were subject to the Alien Enemies Act and the number of people on the flights who were subject to the Alien Enemies Act.

The Department of Justice has also argued that an oral order given by Boasberg was “not enforceable” because it was not a written order.

Fighting the judicial order

In a temporary restraining order barring President Donald Trump from invoking the Alien Enemies Act of 1798 to detain and deport any Venezuelan nationals 14 and older who are suspected members of the Tren de Aragua gang, Boasberg also ordered those flights carrying Venezuelan men to return to the U.S. Those men instead were taken to a maximum security prison in El Salvador.

Boasberg on Monday demanded sworn statements from the Department of Justice to determine if the Trump administration relied on the Alien Enemies Act to deport any of the Venezuelan men flown to El Salvador, which would have violated his Saturday temporary restraining order.

In the Tuesday notice signed by Bondi, the Department of Justice also argued that “the Government should not be required to disclose sensitive information bearing on national security and foreign relations.”

Another hearing before Boasberg is set for Friday afternoon.

Authority for deportations

Robert Cerna, the acting field office director for enforcement and removal operations for U.S. Immigration and Customs Enforcement, said in a signed statement to the court that the immigrants on a third deportation flight after the Saturday restraining order were not removed under the Alien Enemies Act, but under a separate final removal authority known as Title 8.

“To avoid any doubt, no one on any flight departing the United States after 7:25 PM EDT on March 15, 2025, was removed solely on the basis of the Proclamation at issue,” he said.

Boasberg issued his temporary restraining order Saturday around 6:48 p.m. Eastern, according to court filings. One of the flights landed in Honduras at 7:36 p.m. Eastern and the other flight landed in El Salvador at 8:02 p.m. Eastern.

Cerna also clarified that the president signed the proclamation invoking the wartime law on Friday, but that ICE understood the proclamation went into effect after the White House published it Saturday afternoon.

Cerna said there are roughly 258 additional immigrants who would be subject to the proclamation. Of those people, Cerna said that 54 were already detained.

18th-century law

The Alien Enemies Act has only been invoked three times, all when the U.S. was at war with other countries. The most recent was during World War II, when it led to the rapid detention and internment camps of nationals from Japan, Italy and Germany.

The U.S. is not at war with another country, and Congress has not approved a declaration of war. The Trump administration has argued that by designating the Tren de Aragua gang as a terrorist group, the act can be invoked.

The White House has defended the deportation flights and has argued that it has not violated the court’s order.

White House press secretary Karoline Leavitt said during a Monday press briefing that the Trump administration is confident it will be successful in court.

She added that the U.S. paid El Salvador $6 million to detain the 261 men who were deported to the country.

Appeals

The president has lashed out against the temporary restraining order, even calling for the impeachment of Boasberg, along with other federal judges who have ruled against his administration.

“This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!,” Trump wrote on social media.

It prompted a rare statement of rebuke from U.S. Supreme Court Chief Justice John G. Roberts.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. “The normal appellate review process exists for that purpose.”

The Trump administration has already appealed the temporary restraining order to the D.C. Circuit Court of Appeals.

In that appeal, the Justice Department asked the appellate court to remove the case from Boasberg, taking issue with his decision to agree to a class action lawsuit, rather than apply the restraining order to the original five men in the suit.

The American Civil Liberties Union originally brought the suit with five men who are Venezuelan and were threatened “with imminent removal under” the Alien Enemies Act.

The case is likely to head to the U.S. Supreme Court.

President Donald Trump speaks during an executive order signing in the Oval Office at the White House on Feb. 11, 2025, in Washington, D.C.  (Photo by Andrew Harnik/Getty Images)

WASHINGTON — A federal judge late Monday ordered the U.S. government to provide answers about details of the Trump administration’s deportation of immigrants under an 18th-century wartime law after civil rights groups alleged that the administration defied the court’s restraining order reversing the deportations.

The Department of Justice was given four directives by U.S. Judge James Emanuel Boasberg in the District of Columbia that are due in a filing by noon on Tuesday. Among the requirements is a sworn statement that the government did not rely on the 1798 Alien Enemies Act for the authority to deport any of the Venezuelan men flown to El Salvador over the weekend, which would have violated his Friday temporary restraining order.

According to the order, if “the Government takes the position that it will not provide that information to the Court under any circumstances, it must support such position, including with classified authorities if necessary.”

The American Civil Liberties Union wrote in court briefings that the government violated a court order by not turning around deportation flights headed to Honduras and El Salvador late Saturday, despite a restraining order in place hours prior to the flights’ landing.

Four directives

The Trump administration tried to dismiss the case, but Boasberg rejected the motion.

Prior to Monday’s late emergency hearing, the Department of Justice defended the Trump administration’s deportation flights, arguing in a court filing that the federal judge’s “oral directive is not enforceable as an injunction.”

At Monday’s hearing, Boasberg ordered the Department of Justice to issue a sworn declaration that after he issued a restraining order Saturday, none of the men on the deportation flights were removed on the grounds of the Alien Enemies Act.

He also wants to know when the president signed the proclamation and when it went into effect.

Boasberg also asked the Justice Department to report how many people would be subject to the act who are in the U.S. and how many of those people are in custody.

He is asking Department of Justice attorneys for the Trump administration’s “position on whether, and in what form, it will provide answers to the Court’s questions regarding the particulars of the flights,” according to the order.

President Donald Trump on Sunday afternoon posted a highly produced, dramatized video showing what appeared to be the deported migrants in uniform garb, chained, with their hair and beards forcibly shaved by armed prison guards in El Salvador. The men in the video were shoved into maximum security cells in the huge El Salvador prison known as the Centro de Confinamiento del Terrorismo.

“Beyond the concerns raised by the government’s own letter, there has been significant media reporting that Defendants may have defied the Court’s Order,” the ACLU wrote, referring to the Trump administration.

Appeal already filed

The Trump administration has already appealed to the U.S. Court of Appeals for the D.C. Circuit and has urged that court to remove the case from Boasberg.

In a Monday filing to the appeals court, the Trump administration argued that the lower court overreached its authority.

“The Government cannot—and will not—be forced to answer sensitive questions of national security and foreign relations in a rushed posture without orderly briefing and a showing that these questions are somehow material to a live issue,” according to the filing.

The Trump administration is also appealing the lower court’s decision to allow a class action suit to include anyone who is subjected to the proclamation the president issued over the weekend. The ACLU originally brought the suit with five men who are Venezuelan and were threatened “with imminent removal under” the Alien Enemies Act.

“The district court has enjoined the President from using his statutory and constitutional authority to address what he has identified as an invasion or predatory incursion by a group undertaking hostile actions and conducting irregular warfare,” the Trump administration wrote in its Sunday appeal.

White House press secretary Karoline Leavitt said during a Monday press briefing that the Trump administration is confident they are “going to win in court.”

She added that the U.S. paid El Salvador $6 million to detain the 261 men who were deported to the country.

The high-profile dispute is likely to head to the U.S. Supreme Court.

Saturday’s events

The administration had said in a presidential proclamation published Saturday it would be using the Alien Enemies Act of 1798, last invoked during World War II, to detain and remove anyone 14 or older who is a suspected member of the Venezuelan gang, the Tren de Aragua.

In the proclamation, President Donald Trump said he will detain and deport anyone 14 and older who is a suspected member of the Tren de Aragua. There is a carve out for naturalized citizens and lawful permanent residents, or green card holders. 

“Evidence irrefutably demonstrates that (Tren de Aragua) has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens,” according to the Trump proclamation. “As President of the United States and Commander in Chief, it is my solemn duty to protect the American people from the devastating effects of this invasion.”

To block that use of the Alien Enemies Act, the ACLU and other civil rights groups filed an emergency request before Boasberg in the District of Columbia, and a hearing was held at 5 p.m. Eastern on Saturday. Boasberg was nominated by former President Barack Obama in 2011.

Flight records and court briefing show that two U.S. Immigration Customs and Enforcement flights departed from Texas Saturday – one at 5:45 p.m. Eastern for El Salvador and one at 5:26 p.m. Eastern for Honduras.

Roughly an hour later, Boasberg issued a temporary restraining order and, in his order, told the government to turn around any deportation flights that were currently in the air.

“[A]ny plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States,” Boasberg said, according to the court’s transcript. “However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”

Both flights landed after the orders were given by Boasberg, ACLU argues in its court records.

A third Saturday flight left from Texas to Honduras at 7:37 p.m. Eastern, according to flight records and court briefings.

In filings to the appeals court, the Trump administration argued that the district court did not have the jurisdiction to issue the temporary restraining order and that the president has the authority to use the Alien Enemies Act.

On Sunday, the president of El Salvador, Nayib Bukele, on social media, reposted a news story about the deportation flights that had continued despite a court order.

He responded, “Oopsie… Too late.” U.S. Secretary of State Marco Rubio reposted the response from El Salvador’s president from his personal account.

Rubio has traveled to El Salvador and met with Bukele to talk about accepting deportations of nationals from other countries. In those meetings, Bukele agreed to accept “members of the Venezuelan Tren de Aragua gang” and place them in jail, according to State Department records. 

Due process concerns

U.S. immigration law already gives the authority to investigate, arrest and remove immigrants who are engaging in criminal activity or harm in the country, and the wartime authority to go after the Tren de Aragua is not needed, said Katherine Yon Ebright, counsel in the Brennan Center’s Liberty and National Security Program.

She said Trump invoking the wartime authority is not about “going after people who are provably committing crimes or harming American communities.”

“It’s about going after Venezuelans without due process because this law gives the president the power to say that … they’re dangerous, and just remove them without proving anything to an independent adjudicator, without any evidence that actually underlies that determination,” she said.

Immigrants subject to the Alien Enemies Act would not have access to an immigration judge or court hearing under the law.

Saturday’s proclamation is similar to an executive order the president signed on Inauguration Day, titled Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.

He previewed in his inauguration speech his intentions to designate cartels as foreign terrorist groups in order to use the Alien Enemies Act.

“By invoking the Alien Enemies Act of 1798, I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to U.S. soil, including our cities and inner cities,” Trump said during the Jan. 20 address.

In order for the Alien Enemies Act to be invoked, an invasion by a foreign government must occur, and in the executive order relating to the cartels, the Trump administration argues that they are a foreign entity. The cartels that the Trump administration singles out in the order are the MS-13 gang and the Tren de Aragua.

U.S. Department of Homeland Security Secretary Kristi Noem has already revoked protections granted to roughly half a million Venezuelans under the Biden administration. In early February, she declined to renew Temporary Status Protections for 350,000 Venezuelans that are set to expire April 2. In her reasoning, she cited gang activity.

Ebright noted that the last time the act was invoked, during World War II, many of the Japanese, Italian and German immigrants who were detained had some form of legal status.

“I would put money on it that this proclamation is going to cover people who are lawfully present,” she said.

Historical use of Alien Enemies Act

The last time the Alien Enemies Act was invoked was after Japan attacked Pearl Harbor in 1941.

But even after World War II ended in 1945, the Alien Enemies Act was still in place for several years, along with the continuation of internment camps, because Congress and the president had not formally terminated the declaration of war, Ebright said.

She said that the U.S. Supreme Court upheld then-President Harry Truman’s extended use of the Alien Enemies Act three years after World War II on the grounds that “it would be too political for the courts to intercede and say that this wartime authority had lapsed.”

“That is something that makes talking about the Alien Enemies Act and the potential for abuse very important, but it doesn’t mean that the courts truly are powerless to step in and prevent a clear abuse of the authority right,” she said.

Ebright said there’s a distinction between the Pearl Harbor attack during World War II and present day.

“Today, you don’t have anything remotely close to a wartime context,” she said. “Judges have eyes, they can see that there has not been a second Pearl Harbor perpetrated by a gang.”