The federal appeals court in Washington remained on Wednesday and the Trump administration currently uses a barrier to a wartime statute that is rarely called to expel Venezuelan immigrants, accused of being members of violent street gangs.
By a 2-1 vote, a panel from the U.S. District of Columbia Circuit Court of Appeals said Venezuelan immigrants may succeed in saying that the government cannot use the Wartime Act, the Foreign Enemy Act, to transfer them to prisons in El Salvador.
“Even if the government recognizes their judicial review of its mobility, the government's dismissal plan even denies due process for the plaintiff,” wrote Judge Patricia A. Millett.
The decision hit the Trump administration’s efforts to pass the Wartime Act to advance its immigration agenda, but anyway, the basic order will run out on Saturday. Other lawsuits on whether to issue a long-term injunction may also return to Chief Justice James E. Boasberg, Washington District Court.
In mid-March, Judge Boasberg issued a restraining order unless the Trump administration uses the Foreign Enemy Act to immediately remove Venezuelans from the Gang Tren de Aragua. His order does not prohibit the government from detaining such persons, nor does it prohibit the deportation of them after hearings under normal immigration laws.
In the related dispute, Justice Boothberg also tried to determine whether the Ministry of Justice violated his court order by completing the transfer of two Venezuelans of Venezuelans who were on his way to El Salvador when he issued it. The government argued that it did not violate his orders because the plane was already outside U.S. airspace when it was issued.
Lee Gelernt, attorney for the American Civil Liberties Union, who represents Venezuelan immigrants, praised the appeals court for upholding the restraining order, which would prevent further transfers at present.
“The court properly recognizes the seriousness of the problem and requires further litigation before more people are sent to the infamous El Salvador prison, perhaps for the rest of their lives,” he said.
White House spokesman Harrison Fields criticized the decision, saying the court's failure to stop Justice Boasberg's order “shocks the conscience of the American people.” He added that the Trump administration will promptly demand the Supreme Court to intervene.
The High Court rarely accepts appeals from interim restraining orders, which usually lasts only for a period of time.
In recent days, the case has been a flashpoint on the use of a 227-year-old law against the Trump administration, which has been called only three times in U.S. history, during a time of war being declared in pursuit of a peacetime agenda for mass deportation.
Government officials repeatedly defeated Judge Boasberg's attempts to get more information about the two planes that lasted to El Salvador. President Trump and his allies also expressed anger at Judge Boasberg's order, describing it as an illegal invasion of the executive's national security power. Mr. Trump called on him to impeach each.
However, the Appeal Panel's ruling largely overlooked this aspect of the confrontation, focusing on the narrow question of whether the restriction order is legal.
Judge Karen Henderson appointed by President George HW Bush said it seems unlikely at this early stage to apply the Alien Enemy Act in the way the Trump administration is trying to use it. She also rejected the government's claim that the matter was beyond the authority of the judiciary because it touched on diplomatic relations
“Sensitive subjects alone do not hide the law from the eyes of justice, and in fact, we have previously considered the exact issues that the government thinks we cannot,” she wrote.
Judge Millett, appointed by President Barack Obama, agreed to Judge Henderson but wrote a letter alone. Her opinions focused more on the legitimate process of Trump administration officials, accused of being a member of Tren de Aragua, who the White House recently designated as a terrorist group.
Judge Millit's opinion also said that the government will not temporarily suspend the use of the Alien Enemy Act as a judge who will more thoroughly evaluate facts and laws.
“The District Court has been dealing with the matter through a huge expedition and caution, and its orders can only freeze the status quo until it can resolve heavy and unprecedented legal issues.”
The third judge of the panel, Justin Walker, was the Trump-appointed person. He believes the case should not be filed in Washington, but in Texas, in Texas, where five Venezuelan immigrants filed the complaint were held. Judge Walker also has more credibility on the Trump administration’s claims that Judge Boasberg’s original order could undermine diplomatic negotiations on matters of national security.
“The District Court in Washington, D.C. – 1,475 miles from Elvalle Detention Center in Raymondville, Texas, is not a suitable court to listen to plaintiffs' claims,” he wrote. “The government may face irreparable harm to ongoing, highly sensitive international diplomatic and national security operations.”
The Foreign Enemy Act was passed in 1798, and the newly formed United States feared a war with France, which allowed the executive branch to evacuate foreign citizens whose government was declaring war with the United States, or had been violated or engaged in “predatory assault” of U.S. territory. Mr. Trump declared the regulations that Tren de Aragua met the last two criteria.
However, Judge Henderson expressed doubts about the claim. At present, it seems that “invasion” or “predatory invasion” is a form of attack or hostilities, she wrote, noting that “immigration alone is not sufficient.” Nevertheless, she warned that the government would have the opportunity to prove that the gang meets the standards under the law.
Mr. Trump also asserted when issuing the order that members of Tren de Aragua did not leave Venezuela completely on their own will, but instead acted under the secret guidance of the Venezuelan government because its dictatorial leader Nicolas Maduro wanted to undermine the United States.
However, last month, U.S. intelligence agencies distributed an assessment of opposite conclusions. Officials said the gang was not under the control of the Venezuelan government, nor was it acting under its guidance, and lacked a centralized command and control organization to follow any orders.
