Judge blocks Trump from deporting noncitizens under Alien Enemies Act, orders flights turned around

A federal judge blocked the Trump administration from deporting any noncitizens pursuant to the president’s recent proclamation invoking the Alien Enemies Act.

Less than two hours after President Donald Trump attempted to invoke the 18th century law to deport alleged members of the Venezuelan gang Tren de Aragua, U.S. District Judge James Boasberg issued a temporary restraining order that blocks the Trump administration from deporting noncitizens currently in custody pursuant to the president’s recent proclamation.

“Flights are actively departing and plan to depart. I do not believe that I am able to wait any longer,” Boasberg said.

He also ordered the Trump administration to immediately turn around two planes carrying noncitizens if they are covered by his order, including one that potentially took off during a break in the court’s hearing.

“You shall inform your clients of this immediately any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” he said. “However that’s accomplished, turning around the plane, or not embarking anyone on the plane…this is something that you need to make sure is complied with immediately.”

Finding the deportations would cause irreparable harm, Boasberg barred the Trump administration from deporting “all non-citizens who are subject to the AEA proclamation” for at least 14 days. ICE will continue to keep the noncitizens in their custody while the lawsuit makes its way through the courts.

“I think there’s clearly irreparable harm here given that these folks will be deported and many – or the vast majority – to prison or back to Venezuela where they face persecution or worse,” he said.

Before Judge Boasberg issued his order, a lawyer with the DOJ declined to say whether any deportations were ongoing, arguing disclosing “operational details” would raise “potential national security issues.” He later acknowledged that two flights — one to El Salvador and another to Honduras — had already departed.

Boasberg also raised concerns that the Venezuelans would be sent to a prison in El Salvador, rather than their home country.

“No only are they going to be deported, but it’s not going to be to friendly countryside but to prison,” Judge Boasberg said.

The hearing comes as the Trump administration claimed that the president’s Article II powers give him the authority to unilaterally deport any person who poses a “significant threat” to the United States. DOJ lawyers argued that the temporary restraining order would pose an “irreparable harm” to Trump’s authority.

Earlier in the day, Boasberg temporarily blocked the deportation of five noncitizens and said he is now considering extending his temporary restraining order to cover a broader class of noncitizens.

Lawyers with the ACLU alleged that the Trump administration was actively deporting “hundreds” of Venezuelan migrants to El Salvadoran prisons.

“Our understanding from people on the ground from different sources is that planes are going right now taking Venezuelans to El Salvador and maybe ending up in El Salvador in prison,” said ACLU’s Lee Gelernt. “Not only will that divest this court of jurisdiction, but I think those people are in real trouble.”

Judge Boasberg suggested the plaintiffs succeeded in proving how they will be harmed by Trump’s order.

“I think they’ve made out the harm that will befall individual plaintiffs upon removal,” he said.

Lawyers with the Department of Justice asked the U.S. Court of Appeals for the District of Columbia Circuit to enter an administrative stay of the lower court’s temporary restraining order, which blocks the Trump administration from invoking the AEA.

“This Court should halt this massive, unauthorized imposition on the Executive’s authority to remove dangerous aliens who pose threats to the American people,” they said in the filing.

The government argued that Boasberg overstepped his authority, declined to hear a response from the Trump administration before ruling and is “setting the stage to potentially inject itself into all such removals nationwide.”

Boasberg previously oversaw the United States Alien Terrorist Removal Court and was nominated to federal judicial roles by both Presidents George W. Bush and Barack Obama.

The ACLU is representing five plaintiffs it believes have been moved to detention centers in Texas intended to be “staging facilities to remove Venezuelan men under the AEA,” court documents show. Four of the five plaintiffs have been accused of being members of Tren de Aragua.

The ACLU claims they have been wrongfully accused of being gang members, some seemingly only based on their tattoos, despite the fact that some are seeking protection in the United States from the same gang they’re now accused of being a part of.

The AEA states that it can only be invoked when there is a war with or an invasion by a foreign government or nation. It allows the president to order all citizens of that foreign nation who are not naturalized in the U.S. to be arrested and removed “as alien enemies.”

In essence, members of that hostile nation could be swiftly removed from the country with little to no due process.

The ACLU argues that the government would be illegally invoking the act to target alleged members of Tren de Aragua because the gang is not a nation and there is no invasion as outlined by U.S. law.

“The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless. It may be the administration’s most extreme measure yet, and that is saying a lot,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead counsel.

The Department of Defense is not expected to have a role in the invoking of the authority, which could be used to deport some migrants without a hearing.

There have been discussions inside the administration about invoking the act, multiple sources said.

Trump had previously said on the campaign trail that he planned to invoke the act.

The act hasn’t been used since World War II when it was used to detain Japanese Americans.

During World War II, the Alien Enemies Act was partially used to justify the internment of Japanese immigrants who had not become U.S. citizens. The broader internment of Japanese-Americans was carried out under executive orders signed by President Franklin D. Roosevelt and not the Alien Enemies Act since the law does not apply to U.S. citizens.