Second judge bars Trump use of Alien Enemies Act for deportations

A second federal judge determined President Trump exceeded his authority in using the Alien Enemies Act (AEA) to deport Venezuelans alleged to be gang members, blocking the administration from using it in the Southern District of New York.

U.S. District Judge Alvin Hellerstein said Tuesday that Trump ran afoul of the law, which only may be ignited when there is a declared war or if the U.S., is facing an incursion on its territory.

And he excoriated the administration for providing little opportunity for the men to challenge their alleged association with the Tren de Aragua gang, saying the Trump team was failing to meet the due process protections of the wartime law.

Evidence “that TdA [Tren de Aragua] has engaged in either a ‘war,’ ‘invasion’ or a ‘predatory incursion’ of the United States, do not exist,” Hellerstein wrote, citing the predicates for igniting the law.

“There is nothing in the AEA that justifies a finding that refugees migrating from Venezuela, or TdA gangsters who infiltrate the migrants, are engaged in an 'invasion;' or ‘predatory incursion.' They do not seek to occupy territory, to oust American jurisdiction from any territory, or to ravage territory. TdA may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion,” the New York-based judge wrote.

“Thus, I find that the Presidential Proclamation exceeds the scope of the AEA.”

The Alien Enemies Act has been used just thrice in U.S. history, all during times of war. It was most recently used as the basis for Japanese internment during World War II.

A Texas-based federal judge last week also found Trump unlawfully used the AEA, likewise determining that the law could not be used to respond to a gang.

But Hellerstein spent ample time reviewing the Trump administration’s due process obligations under the act.

He blasted the Trump administration for carrying out the deporations with “no mention [to migrants] of an indefinite detention in a foreign jail hired by the United States” with “faint hope of process or return.”

He noted both the act and a recent ruling by the Supreme Court requires immigrants be given sufficient notice before any deportation under the AEA.

“The notice is a fleeting affair, for if the alien fails to express an intent to file a petition for habeas relief within a dozen hours of being served … or to actually file a petition within another 24-hour period, ICE [Immigration and Customs Enforcement] ‘may proceed with removal.’ And even if an alien files for habeas relief, Respondents state that they still may deport him if the court does not grant a temporary restraining order, or takes too long to conduct the proceeding,” he wrote.

“Respondents’ proposal for notice is insufficient under the AEA, the Supreme Court’s ruling … and Constitutional due process.”

Hellerstein also reviewed conditions at CECOT, the notorious prison facility in El Salvador known by its acronym in Spanish where immigrants are being sent from the U.S.

“The destination, El Salvador, a country paid to take our aliens, is neither the country from which the aliens came, nor to which they wish to be removed. But they are taken there, and there to remain, indefinitely, in a notoriously evil jail, unable to communicate with counsel, family or friends,” he wrote.

“Here, absent a preliminary injunction, Petitioners would be removed from the United States to CECOT, where they would endure abuse and inhumane treatment with no recourse to bring them back. If that is not irreparable harm, what is?”