Over the past two weeks, immigration lawyers who scrambled from court to court have secured interim orders in five states that would stop the Trump administration from using the alien enemy law, an 18th century wartime law, and accused him of being a gang member in El Salvador's terror prison, which was accused of being a gang member.
The judges were strict about assessing how the White House used strong laws. “Cows are currently receiving better treatment under the law,” a federal judge in Manhattan said Tuesday.
But one thing that lawyers haven't managed to do, at least so far, is protecting a group of immigrants in Venezuela. Venezuelan immigrant group: Already 140 men in El Salvador have been deported under the act more than a month ago.
Earlier on Friday, the American Civil Liberties Union took another shot by seeking a legitimate process for those men. The group's lawyers filed an updated version of the lawsuit brought on March 15 against Trump's use of alien enemies.
This time, the ACLU is asking a federal judge in Washington to help men return to American soil rather than stop them from being sent to El Salvador.
When the ACLU filed an early version of the case in Washington's U.S. District Court, Judge James E. Boasberg immediately ordered that Venezuelan planes be sent to El Salvador under the alien enemy laws and turn around the flights already in the air.
But it never happened. The administration's inaction ultimately poses a threat from Judge Boasberg to begin an investigation into whether Trump officials violated his original instructions.
Overall, the ACLU has filed at least seven cases in seven federal courts nationwide, challenging Trump's declaration on March 14th, with alien enemies acting as one of the central tools of his offensive deportation agenda.
The lawsuit has taken office in two different but related legal matters.
One is an important procedural question. Whether the Trump administration provided immigrants that it claimed to be removed under the law with enough time and opportunity to challenge deportation in court.
In a court sealed Thursday in the Texas ACLU case, the federal immigration chief said he had determined that immigrants had only 12 hours of “reasonable time” to express their desire to challenge deportation. Officials said immigrants could have at least another day to submit assignments in court.
Another issue that the ACLU is investigating is more substantial. Whether the White House should be allowed to use the actions at all against Venezuelan immigrants. Passed in 1798, this law is to be invoked only in the age of war or military invasion against hostile foreign members.
Trump officials have repeatedly argued that the Venezuelans they are trying to deport are members of a criminal gang called Tren de Aragua, and their presence in the US amounts to an aggression supported by the Venezuelan government. However, that view has been rejected not only by some US intelligence directors, but also by increasing judges considering the ACLU case.
For example, during a hearing in U.S. District Court in Manhattan on Tuesday, Judge Alvin K. Hellerstein called Trump's use of the law “contrary to the law.”
On several occasions, Judge Hellerstein, appointed by President Bill Clinton, said he believes Trump is using the law in an inappropriate way. He specifically said the law “did not authorize the government to hire prisons in foreign countries where it could result in cruel and unusual punishments that would not be allowed in US prisons.”
Justice Department lawyer Tiberius Davis was in trouble with his views, Judge Hellerstein shot him down.
“Your honor, in honor, if they've already been removed, they don't have US custody,” Davis said. “It's El Salvador. They are sovereignty of another foreign country.”
“That's exactly what matters,” Judge Hellerstein said.
Another judge, Charlotte N. Sweeney, ruled this week in U.S. District Court in Denver that Trump's declaration improperly extended the meaning of terms such as “war” and “aggression” in a way that violates the actual texts of alien enemies.
“The Act cannot maintain a declaration because “text and history” in this Act uses these terms to refer to military actions that represent actual or imminent war, rather than “large-scale illegal immigration” or “criminal acts,” she wrote.
The Supreme Court has yet to place emphasis on the broad question of whether the White House is using the law properly, but the court has decided on the procedural question as to whether Trump officials gave it to immigrants who are subject to legitimate processes of the law.
Deeming they were not, the judge ruled on April 7, ordering that Venezuelan immigrants must warn them in advance if the government intends to expel them so that they can only challenge them where they were detained so that they can challenge them in court. The judge has not laid out a vision for what amounts immigrants should receive, or what type of warning.
Still, the ACLU is using that decision along with the second Supreme Court ruling taken over in another deportation case in an updated lawsuit filed in Washington. In that decision, the judge ruled that the White House must “promote” the release of Maryland man Kilmer Armando Abrego Garcia.
ACLU lawyers are urging both of these rulings to be fused into a single tool, not only to require the Trump administration to provide nearly 140 Venezuelans in Salvador custody in a way that challenges any situation, but also to take aggressive steps to ensure release as they were previously not given the opportunity to do so.
Additionally, the lawyers argued that it would be appropriate to challenge the deportation before Washington Judge Boasburg. They say Washington is the right place for legal action when prisoners are in custody abroad.
However, even if this strategy is successful, it may be difficult to force the regime to take steps to actually be released from Salvador's custody.
Abrego Garcia, for example, stayed in El Salvador two weeks after the Supreme Court ordered the White House to secure his freedom.
Jonah E. Bromwich and Mattachias Schwartz Reports of contributions.
