Trump invokes wartime law to deport Venezuelans, but judge moves to pause effort

The Trump administration on Saturday published an executive order to deport Venezuelan gang members under the Alien Enemies Act of 1798, a rarely used wartime law that could allow removals with little due process.

But shortly after the announcement, James E Boasberg, a federal judge in Washington, DC, said he would issue a temporary order blocking the government from deporting any immigrants under the Alien Enemies Act.

Boasberg said he did not believe the law offered grounds for the president’s action, and he ordered that any flights that had departed with people return to the United States “however that’s accomplished — whether turning around the plane or not.”

Lee Gelernt, a lawyer for the American Civil Liberties Union, said in an interview that he believed two flights carrying Venezuelan immigrants out of the country under the order were “in the air” Saturday evening. During the hearing, Boasberg said he was ordering the government to turn flights around given “information, unrebutted by the government, that flights are actively departing.”

“This is something you need to make sure is complied with immediately,” he urged the government.

The president’s order, dated Friday, declares that Venezuelans who are at least 14 years old, in the United States without authorization and part of the Tren de Aragua gang are “liable to be apprehended, restrained, secured and removed.”

The Alien Enemies Act allows for summary deportations of people from countries at war with the United States. The law, best known for its role in the internment of Japanese Americans during World War II, has been invoked three times in US history — during the War of 1812, World War I and World War II — according to the Brennan Center for Justice, a law and policy organization.

Hours before the White House published its proclamation, the ACLU filed a lawsuit on behalf of five Venezuelan men seeking to block the president from invoking the law. All five men were accused of having links to Tren de Aragua, Gelernt said. One of the men was arrested because an immigration officer “erroneously” believed he was a member of Tren de Aragua because of his tattoos, the lawsuit said.

Boasberg initially issued a limited order Saturday blocking the government from deporting the five men.

The Trump administration promptly filed an appeal of the order, and the ACLU asked the judge to broaden his order to apply to all immigrants at risk of deportation under the Alien Enemies Act. At a virtual hearing Saturday evening, the judge said he would issue a broader order applying to all “noncitizens in US custody.”

In the lawsuit, lawyers for the ACLU wrote that the Venezuelans believed that they faced an immediate risk of deportation. “The government’s proclamation would allow agents to immediately put noncitizens on planes,” the lawsuit said, adding that the law “plainly only applies to warlike actions” and “cannot be used here against nationals of a country — Venezuela — with whom the United States is not at war.”

The judge agreed, saying that he believed the terms “invasion” and “predatory incursion” in the law “really relate to hostile acts perpetrated by enemy nations.”

The White House and the Homeland Security Department, which runs the nation’s immigration system and was named in the lawsuit, did not immediately respond to requests for comment.

Noah Feldman, a constitutional law professor at Harvard Law School, said the fate of the case, which could ultimately wind up at the Supreme Court, would hinge on “how much deference the courts pay to the president’s determination that there’s a threatened incursion.” Judges would have to make that determination “without a lot of precedent,” Feldman added.

Trump, who campaigned last year on a promise to initiate the largest deportation operation in U.S. history, has often referred to the unauthorized arrivals of migrants as an “invasion.” One of the first executive orders he issued after returning to the White House was titled, “Protecting the American People Against Invasion.”

His proclamation invoking the Alien Enemies Act appeared to be narrowly focused on Tren de Aragua, a gang that emerged from a Venezuelan prison and grew into a criminal organization focused on sex trafficking, drug dealing and human smuggling.

But if the Trump administration’s interpretation of the law is ultimately upheld, it could empower the administration to remove other immigrants age 14 or older without a court hearing. That could allow the extraordinary move of arresting, detaining and deporting immigrant minors without the due process afforded to immigrants for decades.