The judge presiding over the Alien Enemies Act case on Monday denied the government’s request to lift his hold on deportations under the rarely used wartime law despite President Donald Trump’s repeated attacks on him and his order.
Denying the government’s order to vacate his rulings, U.S. District Judge James Boasberg found that the Venezuelan nationals the administration wants to deport under the law should likely be given the opportunity to challenge allegations that they’re members of the Tren de Aragua gang first.
The decision came just hours before a federal appeals court is set to hear arguments that the deportations should be allowed to continue while it considers the government’s appeal of Boasberg’s ruling.
Trump has repeatedly attacked Boasberg for his March 15 emergency order temporarily halting deportations stemming from Trump’s invocation of the law, which has only previously been used during declared wars. The president has said in posts on his social media platform that Boasberg “is doing everything in his power to usurp the Power of the Presidency” and “doesn’t mind if criminals come into our Country.”
Boasberg did not mention the Trump posts in his Monday ruling, but did note that his ruling only stayed deportations under the AEA, and doesn’t bar people from being detained under the act or deported under other authorities.
“It is important to stress once again that the Order was narrow: it prevented Defendants only from removing the Plaintiff class on the sole basis of the Proclamation. In other words, the Order did not prevent Defendants from removing anyone — to include members of the class — through other immigration authorities,” he wrote, adding that member of Tren de Aragua are deportable under other statutes since Trump designated the gang a foreign terrorist organization.
“The Order also did not require Defendants to release a single person held in their custody, even individuals held only on the basis of the Proclamation,” the judge added. “And it did not even prevent Defendants from apprehending noncitizens under the authority of the Proclamation (or any other law, for that matter).”
What his order did put limits on was deporting alleged gang members to a notoriously dangerous El Salvador prison without their being allowed to contest that they’re involved with the gang, as the five plaintiffs in the case have done.
The judge suggested the government had acted in bad faith in an effort to avoid such hearings. He noted two planes carrying deportees took off on March 15, despite the government’s knowing about the emergency hearing on the issue before the judge, and called it “a move that implied a desire to circumvent judicial review.”
The “Government knew as of 10:00 a.m. on March 15 that the Court would hold a hearing later that day, and the most reasonable inference is that it hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the Government now acknowledges they are entitled,” the judge wrote.
He said he’d asked the government during the 5 p.m. hearing whether any such flights were underway, and was told by a DOJ attorney that he did not know. The judge then took a recess to allow the lawyer to check.
“When the hearing resumed shortly after 6:00 p.m., the Government surprisingly represented that it still had no flight details to share,” the judge said.
He’s since repeatedly demanded that the government give him information on the timing of the flights — something it has yet to do, arguing he’s not entitled to the information.
In his ruling Monday, the judge denied the government’s motion to vacate his order, citing the “irreparable harm” that could be caused by sending non-gang members to El Salvador.
“In Salvadoran prisons, deportees are reportedly ‘highly likely to face immediate and intentional life-threatening harm at the hands of state actors’,” the judge wrote, and the deportees face horrific living conditions and the “likelihood of potential torture.”
The plaintiffs claim that “many” of the deportees on the two flights were not affiliated with the gang, which the government denies.
“As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, ‘alien enemies,'” the judge wrote.
“Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” he added. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”
They “are entitled to individualized hearings to determine whether the Act applies to them at all,” he wrote.
