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The Trump administration has asked the Supreme Court to lift a District Court judge’s order blocking the use of an obscure 18th century law to summarily expel Venezuelan immigrants. Earlier this month, the administration sent hundreds of immigrants to an El Salvador prison because, officials alleged, they were members of a dangerous gang.
In response to a lawsuit, the lower court temporarily blocked any further deportations while the court considers the merits of the case, and it ordered planes carrying migrants deported under the law to be returned, which the administration did not do.
The lack of due process and the apparent disregard for the court order has led some legal experts to forecast a deterioration of the rule of law in the U.S., while the Trump administration maintains that it is within its rights to deport dangerous criminals.
We’ll lay out the facts as we know them regarding the key issues.
On Saturday, March 15, the Trump administration sent three planes carrying more than 250 immigrants to El Salvador, bound for the country’s largest prison.
The administration claimed that members of the Venezuelan gang Tren de Aragua, which is active primarily in South America, but has had an increasing presence in the U.S., were on board. The Treasury Department designated it as a transnational criminal organization in July 2024, and the State Department designated it as a terrorist organization on Feb. 20.
The same day as the deportations, the White House posted a proclamation invoking the Alien Enemies Act — a rarely used law that dates back to 1798 — to expel members of Tren de Aragua. It said that “all Venezuelan citizens 14 years of age or older who are members of TdA” and aren’t U.S. citizens or permanent residents “are liable to be apprehended, restrained, secured, and removed as Alien Enemies.” According to the Federal Register, the proclamation was signed the day before the administration posted it.
The secrecy and pace of the deportations could suggest that the administration was trying to avoid preemptive legal challenges, the judge handling the case disputing the deportations said. “Why is this proclamation essentially signed in the dark on Friday night, early Saturday morning, when people [were] rushed on the plane?” U.S. District Court Judge James Boasberg asked at a March 21 hearing. “To me, the only reason to do that is if you know the problem and you want to get them out of the country before a suit is filed.”
The American Civil Liberties Union and Democracy Forward had filed a lawsuit on the same day of the deportations on behalf of five Venezuelan men who were being held in Texas and “threatened with imminent removal under the President’s expected Proclamation invoking the Alien Enemies Act.” The suit sought class action status for all affected immigrants and asked the judge to block the administration’s use of the act.
Boasberg granted both of those requests on March 15. He issued a ruling from the bench ordering any planes carrying immigrants being deported under the Alien Enemies Act to be returned to the U.S.
The planes did not return and, when Boasberg requested details from the Trump administration about when the planes took off and landed, lawyers for the administration withheld that information and invoked the state secrets privilege.
What is the Alien Enemies Act?
The Alien Enemies Act was one of four laws passed in 1798 as the newly formed U.S. prepared for a potential war with France. That conflict, which entangled the U.S. in a dispute between France and Britain, took place at sea and never became a declared war. It is often called the Quasi War.
The four laws that came from it are referred to collectively as the Alien and Sedition Acts. They include:
- The Naturalization Act, which extended the amount of time it would take immigrants to become citizens. It was repealed in 1802.
- The Alien Act, which allowed the government to deport noncitizens who were deemed to be dangerous. It expired in 1801.
- The Sedition Act, which censored speech that was critical of the government. It expired in 1801.
- The Alien Enemies Act, which allowed the government — in times of war — to detain, relocate or remove those who were from the enemy nation.
The Alien Enemies Act is the only surviving law of the group.
It says that in times of war or during an “invasion or predatory incursion … by any foreign nation or government,” the president can apprehend, restrain, secure and remove any immigrants who came from the enemy country.
It has been used three times throughout U.S. history — first, during the War of 1812 when British immigrants were required to move away from the coast to areas designated by federal marshals; second, during World War I, when German immigrants were required to register with the government and comply with restrictions on where they could work and live; third, during World War II, when the government rounded up Japanese, German and Italian immigrants, leading to the use of internment camps.
Can Trump use the act this way?
This is a question for the courts, which haven’t yet conclusively ruled.
As we said, there’s a class action lawsuit on behalf of the deported immigrants challenging the administration’s use of the act. The federal judge handling the case — Boasberg, the chief judge of the District Court for the District of Columbia — issued an opinion on March 24, saying, “The President’s unprecedented use of the Act outside of the typical wartime context … implicates a host of complicated legal issues, including fundamental and sensitive questions about the often-circumscribed extent of judicial power in matters of foreign policy and national security.”
Boasberg went on to say that the court probably wouldn’t have to decide that question since the immigrants who brought the case are likely to prevail on a different issue. “Before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all,” he said. “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.’”
However Boasberg ends up ruling, though, the case will almost certainly be appealed. The government, in fact, already appealed Boasberg’s initial order blocking further use of the Alien Enemies Act. A split panel of the appeals court upheld Boasberg’s order, and the administration on March 28 filed an emergency appeal to the Supreme Court.
Legal experts have described the administration’s use of the wartime act as an overreach, noting that the U.S. is not at war with Venezuela.
“The legal problems with the deportations are obvious: The US is not at war with Venezuela; the gang isn’t a government; and in any case it’s not threatening the US with invasion or incursion in any ordinary English language sense of those words,” wrote Harvard Law School Professor Noah Feldman in a March 17 column.
The Trump administration, however, had endeavored to link Tren de Aragua to Nicolás Maduro, Venezuela’s president. Tren de Aragua “is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus,” the proclamation invoking the Alien Enemies Act says, going on to call Venezuela a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.”
Gangs have flourished in Venezuela as Maduro’s government has struggled, but it’s worth noting that his administration conducted a raid on Tren de Aragua’s home base — the Tocorón prison — in 2023.
“If our government has evidence of a coordinated invasion into this country that was engineered by a foreign nation, it must have proof. Otherwise, it is fiction,” Michael Gerhardt, a University of North Carolina Chapel Hill constitutional law professor, told PolitiFact.
For years, President Donald Trump has been claiming without evidence that other countries are emptying their prisons and mental institutions and sending people to the United States. In particular, he has targeted Venezuela. Experts in the country told us last year that there’s no support to back up Trump’s claim.
And other legal experts have weighed in on the implications of the proclamation. “The president is invoking the Alien Enemies Act to try to dispense with due process. He wants to bypass any need to provide evidence or to convince a judge that someone is actually a gang member before deporting them,” Katherine Yon Ebright, a lawyer in the Liberty and National Security Program at the Brennan Center for Justice at NYU Law, said in a statement.
“Trump is trying to use the post 9/11 terrorism playbook for immigration,” Asha Rangappa, a former FBI agent and current associate dean at Yale Law School, wrote on Substack. By using the Alien Enemies Act, “Trump may try to ignore or sidestep the courts altogether, giving him immense ‘wartime’ authority (in peacetime) without any judicial check,” she said.
Tren de Aragua in the U.S.
Tren de Aragua began around 2014 in Venezuela’s Tocorón prison in the state of Aragua and, by 2023, had grown to be one of the county’s most powerful criminal organizations, according to the investigative reporting think tank InSight Crime.
“Tren de Aragua’s expansion turned transnational around 2018, when the gang attempted to establish itself on the Venezuela-Colombia border between the Venezuelan state of Táchira and the Colombian department of Norte de Santander,” according to InSight Crime. “Between 2018 and 2023, Tren de Aragua built a transnational criminal network, setting up cells in Colombia, Peru, and Chile, with further reports of a sporadic presence in Ecuador, Bolivia, and Brazil.”
As of 2021, the gang had about 4,000 members in Latin America, according to the anti-corruption advocacy organization Transparencia Venezuela.
Estimating the size of Tren de Aragua in the U.S. is difficult, in part because members don’t adhere to traditional gang behavior, like wearing specific tattoos, Mitchel P. Roth, a professor at Sam Houston State University who researches organized crime, told us in an interview.
In October, the Department of Homeland Security had reportedly identified about 600 members across the U.S., although that number may be too low.
We reached out to DHS asking for updated figures, but we didn’t receive a response.
Of the 194 migrants with gang affiliations who have been apprehended by U.S. Customs and Border Protection between October and February, 16 have been members of Tren de Aragua, according to CBP statistics. For context, that’s about half the number of MS-13 members who have been apprehended in the same time frame, and, assuming all 16 were from Venezuela, that’s .02% of the roughly 64,000 Venezuelans who were apprehended.
Who was deported?
There’s been little official information made available about those who were deported on March 15. But CBS News published 238 names from an “internal government list,” and an unnamed official told the network that 137 of them were deported under the Alien Enemies Act.
White House Press Secretary Karoline Leavitt said at a March 17 press briefing that the administration wasn’t releasing names due to “privacy concerns.”
News outlets have reported on a handful of deportees, revealing that their families, lawyers and even judges presiding over their asylum cases have almost no information on their detention by the U.S. government.
As USA Today reported on March 21, a judge presiding over an asylum hearing was unaware that the claimant, Jefferson José Laya Freites, wouldn’t be present. A lawyer with an immigrant rights organization told the judge that Laya Freites’ wife believed he’d been sent to El Salvador after he was detained following a traffic stop because she saw him in a video the president of El Salvador posted of deportees being taken to the prison there. She said he’s never been in a gang.
Similar stories were reported by the Washington Post, which described how Henrry Albornoz Quintero was arrested and detained after a routine check-in with immigration officials in January, then didn’t show up to a bond hearing. Neither the judge nor the government’s attorney knew where he was. His wife, pregnant with their first child, identified him in one of the photographs released by the El Salvadoran government.
Another case that has been widely reported in the media is that of Jerce Reyes Barrios, a professional soccer player and coach who was seeking asylum in the U.S. after he was allegedly tortured in Venezuela for demonstrating against Maduro, according to his lawyer, Linette Tobin. In a declaration filed in the case before Boasberg, Tobin said that a tattoo Barrios has depicting the logo of his favorite soccer team — Real Madrid — and a social media post in which he was showing the sign language hand gesture that means “I love you” were misinterpreted by Department of Homeland Security officers as indicating he was a member of Tren de Aragua. He has no criminal record, Tobin said.
The Trump administration, however, has maintained that those who were deported were gang members and criminals, whom Leavitt described as “heinous monsters, rapists, murderers, kidnappers, sexual assaulters, predators who have no right to be in this country.”
Trump has repeatedly referred to the deportees as simply “criminals.” A declaration filed by an Immigration and Customs Enforcement official in the case challenging the deportations said that many of those who were deported did not have criminal records, adding that this was “because they have only been in the United States for a short period of time.”
The ICE declaration maintained that all of them were members of the Venezuelan gang. “Agency personnel carefully vetted each individual alien to ensure they were in fact members of TdA,” it said. “ICE did not simply rely on social media posts, photographs of the alien displaying gang-related hand gestures, or tattoos alone.”
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