The Deportation of Anomalous Members of the Tren de Aragua Group in the United States Under the Alien Enemies Act
A federal judge Monday ordered the U.S. Justice Department to provide a sworn declaration by noon ET Tuesday with details on how planeloads of alleged members of Tren de Aragua were deported despite his order to turn the planes around.
There was a debate about when exactly the order was issued and where U.S. custody of deportees ends, during the hearing on Monday. An oral order versus a written order may hold the same weight when it comes to restraining government action.
Three planes carrying people from Venezuela to El Salvador were sent by the Trump administration despite a judge’s order to stop the deportations. The Alien Enemies Act of 1798 gives the president the authority to deport people if the United States is involved in war with a foreign nation. Mr. Trump argued that the migrants had been part of a gang in Venezuela that he said was conducting illegal warfare against the US and that he wanted to deport them.
Gelernt also questioned whether the hundreds of Venezuelan men deported to El Salvador were in fact members of Tren de Aragua or other gangs, as the Trump administration has alleged.
Government lawyers on Sunday wrote that “some gang members subject to removal under the Proclamation had already been removed from United States territory” by the time the judge issued his written order at 7:26 p.m. ET on Saturday.
But lawyers from the civil rights groups argued that even though the judge’s written order came at 7:26 p.m., the judge had actually issued an oral order between 6:45 p.m. ET and 6:48 p.m. ET that directed the government to turn around any planes carrying people being removed under the Alien Enemies Act. They think the oral order should hold the same weight.
The groups said in the filing that they are very concerned that the government might have violated the court’s commands regardless of the time used. They said that the U.S. government retained custody of people until the planes landed and they were turned over to El Salvador — and that it didn’t matter whether the plane was over international waters or not.
ICE had no connection with the weekend deportations of dozens of gang members from El Salvador during World War II. Judge Boasberg argued that the deportation flights did not go unnoticed
As chief judge of the Federal District Court of the District of Columbia since 2023, Judge James E. Boasberg has been responsible for setting the tone of the court through some of its highest-profile dealings with President Trump, including overseeing the end of grand jury inquiries in both federal cases against Mr. Trump, the 2020 elections case and the president’s handling of classified documents.
A judge in Washington, D.C. wants the Trump administration to give more information about the weekend deportation flights that deported hundreds of gang members from Venezuela.
Critics of Donald Trump think that the administration is moving the country closer to a constitutional crisis by openly disobeying the authority of federal courts.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” the court said in a statement from Roberts. “The normal appellate review process exists for that purpose.”
Lawyers for the Justice Department did not answer repeated questions from the judge about when the deportation flights took off, and who was on board the planes.
Justice Department lawyers struck a defiant note, saying that the judge had no right to request information about flights that left the U.S. before his order.
On Saturday, three deportation flights left the U.S. for El Salvadoran after Trump signed a decree using his power to detain or deport nationals of an enemy nation.
The Alien Enemies Act was used to detain 31,000 people, mostly of Japanese, Italian and German ancestry, during World War II.
The statute states that it can only be used against a foreign government. Lee Gelernt, the attorney for the American Civil Liberties Union, stated in an interview with NPR that it has never been used against a gang during the time of peace.
In a court filing late Monday night, the Trump administration insisted it had good reason to believe that the men deported to El Salvador over the weekend are gang members.
“Agency personnel carefully vetted each individual alien to ensure they were in fact members of [Tren de Arugua,]” Cerna said in a declaration. “ICE did not depend on social media posts, photographs of the alien showing gang-related hand gestures or tattoos alone.”
Some of the men being held in a supermax prison in El Salvador have no criminal records in the U.S., according to Cerna. They only spent a short period of time in the United States.
The lack of a criminal record doesn’t mean they pose a limited threat according to Cerna. “The lack of specific information about each individual actually highlights the risk they pose. It shows that they are terrorists with regards to whom we do not have a complete profile.