A three-judge panel Wednesday with a 2-1 vote declined the Department of Justice’s (DOJ) request to lift a lower-court order preventing the Trump administration from using an 18th century wartime law to deport people to a Salvadoran hard labor prison without due process.
President Donald Trump invoked the Alien Enemies Act (AEA) earlier this month to deport to El Salvador hundreds of people that the government claims are members of Tren de Aragua, a transnational criminal organization based in Venezuela.
D.C. Circuit Court of Appeals Judges Karen Henderson and Patricia Millett explained they rejected the request because the government failed to give people it labeled as members of the gang a chance to challenge that designation and because Trump failed to show how illegal immigration could be considered an “invasion” or “predatory incursion” of the U.S.
“Lifting the injunctions risks exiling plaintiffs to a land that is not their country of origin,” Henderson, an appointee of former Presidents George H.W. Bush and Ronald Reagan, wrote, adding that legal precedent holds “that an invasion is a military affair, not one of migration.”
Millett, whom President Barack Obama appointed to the bench, said lifting the lower court’s order would allow the government to immediately deport the five Venezuelans represented by Democracy Forward* and the ACLU who filed a lawsuit over the AEA deportations.
“There is neither jurisdiction nor reason for this court to interfere at this very preliminary stage or to allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court,” Millett wrote.
“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,” Millett added.
The DOJ asked the circuit court to stay District Judge James Boasberg’s previous restraining order in the case, which prevented deportations under the AEA. The Trump administration appeared to defy Boasberg by completing deportations under the wartime act after the judge issued his order.
Boasberg has faced calls for his impeachment from Trump and his allies, while Attorney General Pam Bondi in an official statement from the DOJ accused him of supporting terrorism.
Judge Justin Walker, who Trump appointed, said he would have granted the DOJ’s request because the Venezuelans should have sued in Texas, where they were being held, rather than D.C. and because the Trump administration successfully argued Boasberg’s intervention jeopardized sensitive foreign policy negotiations with El Salvador and Venezuela.
*Democracy Docket Founder Marc Elias is the chair of Democracy Forward’s board.