Two judges in D.C. upheld the ability of Judge James Boasberg to temporarily “stay” — or block — deportations of Venezuelan criminal migrants via the Alien Enemies Act.
Unless the Wednesday 2:1 decision is quickly reversed by likely appeals, it means the migrants will be kept in Texas until Boasberg and other judges eventually decide whether migrants can ask courts to stop their deportations under the 1798 law.
“We are living under judicial tyranny,” responded Stephen Miller, the president’s top migration advisor, who earlier noted every delay effectively shortens the time President Donald Trump has to implement his election promises.
The lawsuit was brought by pro-migration groups who chose to represent several migrants facing deportation from Texas. The migrants were detained and ordered home after Trump revived the old Alien Enemies Act to fast-track the deportation of Venezuelan Tren de Aragua gang members.
On March 24, Boasberg backed the migrants, saying. “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. ”
The 2:1 court decision rejected the appeal from Trump’s deputies, said the case should remain in Boasberg’s D.C court, not Texas, and declared:
Plaintiffs allege that their expected summary removal would be unlawful because the [Trump] Proclamation violated the terms of the AEA, bypassed the procedures set forth for removal in the Immigration and Nationality Act, violated the Administrative Procedure Act (“APA”), and deprived the Plaintiffs of constitutionally required due process to challenge their eligibility for removal.
…
At this early stage, the government has yet to show a likelihood of success on the merits. The equities favor the [migrant] plaintiffs. And the district court entered the TROs [Temporary Restraining Orders] for a quintessentially valid purpose: to protect its remedial authority long enough to consider the parties’ arguments. Accordingly, and for the foregoing reasons, the request to stay the district court’s TROs should be denied.
The dissent by Judge Justin Walker said the case should have been reviewed by a court in Texas, and said:
The district court here in Washington, D.C. — 1,475 miles from the El Valle Detention Facility in Raymondville, Texas — is not the right court to hear the Plaintiffs’ claims. The Government likely faces irreparable harm to ongoing, highly sensitive international diplomacy and national-security operations. The Plaintiffs, meanwhile, need only file for habeas in the proper court [in Texas] to seek appropriate relief.
The Government has met its burden to make “a strong showing that [it] is likely to succeed on the merits” and that it “will be irreparably injured absent a stay.” The issuance of the stay will” not “substantially injure the other parties interested in the proceeding.” And “the public interest lies” with a stay. Therefore, I would grant its motion for a stay pending appeal.
Trump’s deputies likely will appeal the case.
The two-judge majority was composed of Judge Patricia Millett and Judge Karen Henderson. Millet was nominated by President Barack Obama, and Henderson was nominated by President George H. W. Bush in 1990. Walker was nominated by Trump.
The 1798 law is one of the many sections in U.S. immigration law that had fallen into disuse because their original purposes were no longer relevant. For example, new citizens are still required to swear they were neither Nazi camp guards nor members of the Communist Party of the Soviet Union.
The law says [emphasis added]:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.
The case is J.G.G. vs Trump, Civil Action No. 25-766 (JEB) in the federal District Court of D.C.
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