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'Nazis got better treatment': Judge questions Trump's 'Alien Enemies Act' deportations • Arizona Mirror [1]
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Date: 2025-03-24
WASHINGTON — A panel of three federal appellate judges seemed split Monday while hearing the Trump administration’s challenge of a lower court’s restraining order on the use of a wartime law to deport, without due process, Venezuelan nationals with alleged gang ties.
Judge Justin R. Walker, who was appointed to the U.S. District Court of Appeals for the District of Columbia Circuit by President Donald Trump, appeared to align with the Department of Justice’s arguments, while Judge Patricia A. Millett, whom Democratic President Barack Obama appointed, raised serious questions about due process.
The position of Judge Karen LeCraft Henderson, a President George H.W. Bush nominee who is the third member of the panel, spoke less than the others and revealed little about her position.
The panel will rule on the government’s challenge of the temporary restraining order placed by James E. Boasberg, the chief judge for the U.S. District Court for the District of Columbia. The Justice Department argued the order undercut the president’s wartime authority and that the suit by civil rights groups should have been brought to a different court.
Groups led by the American Civil Liberties Union argued Boasberg’s order correctly defended due process protections.
The D.C. Circuit hearing followed back-and-forth hearings before Boasberg, who has vowed to determine whether the Trump administration violated his March 15 oral order to turn around deportation planes.
After Boasberg issued his order, three deportation planes still landed in El Salvador, with mostly Venezuelan men taken to a notorious mega-prison.
Shortly before Monday’s hearing, Boasberg rejected the latest Trump administration attempt to vacate his restraining order that barred use of the proclamation without due process.
In Monday’s order, Boasberg said anyone who is removed from the U.S. under the act is “entitled to individualized hearings.”
“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 wrote. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”
Due process
Millett grilled Department of Justice attorney Drew Ensign on the Trump administration’s view on what due process should be granted to those subject to the proclamation, which states that any Venezuelan national 14 and older with suspected ties to the Tren de Aragua gang may be deported.
Ensign said the Trump administration doesn’t agree that those subject to the proclamation the president signed March 14 should be notified they are being removed under the Alien Enemies Act.
“We agree that if you bring habeas (corpus) that you can raise such challenges,” he said.
A habeas corpus claim asserts someone is unjustly imprisoned and can be used to challenge immigration detention.
Millett said the deportees had no opportunity to raise such a claim.
“Nazis got better treatment under the Alien Enemies Act,” Millett said, referring to German nationals who were able to have a hearing before a board to challenge their removal when the wartime law was invoked during World War II.
The act had previously been invoked only three times in U.S. history, all during wartime.
Millett questioned how the Venezuelans on the first two deportation planes could have challenged their deportations.
“Those people on those planes on that Saturday had no opportunity to file habeas or any type of action to challenge the removal under the (Alien Enemies Act),” she said.
Lee Gelernt, American Civil Liberties Union lead attorney, said that Venezuelans who were removed were “designated (Tren de Aragua) without any advance notice, rushed to planes” and given papers that “specifically says you are not entitled to review.” He said ACLU is preparing to enter that evidence into the court record.
Jurisdiction
Walker questioned the venue where the lawsuit was filed. He asked why the challenge wasn’t brought in a Texas district court, because the original five men who brought the suit were detained there.
Gelernt said a challenge could have been brought in Texas, but that it was not clear where all the detainees subject to the proclamation were being held.
“We certainly weren’t looking just to get our five individuals from being sent to a Salvadorian prison,” Gelernt said. “This would have had to be a class. If the government is suggesting that we could have gone in there for every individual, absolutely not. We did not know who had been designated. This has all been done in secret.”
Walker also questioned how a temporary restraining order could order planes that had already left the U.S. to return.
“I’m wondering if you can point me to a district court (temporary restraining order) or injunction that survived appeal that stopped an ongoing, partially overseas national security operation in the way that this… did (to) order planes to take foreigners from international waters to the United States,” Walker asked Gelernt.
Gelernt said that the issue before the appeals court was not about the order to return deportation planes.
“The government cannot take the position that it’s an interference, by this court, on national security grounds, to give people (due) process,” he said.
New court filings revealed several immigrants on the March 15 flights were returned to the U.S. from El Salvador. They include a Nicaraguan national and eight Venezuelan women who were returned because the mega-prison is for men only.
DOJ argues notice not needed
Ensign argued that the order blocking the implementation of the Alien Enemies Act wrongly constrained the president’s wartime authority.
Millett said that the issue wasn’t about the president’s authority to use the Alien Enemies Act, but how the administration used it.
“The question is whether the implementation of this proclamation without any process to determine whether people qualify under it,” she said.
She asked Ensign if the appeals court lifting the stay would lead to a situation where “people are lined up and put on planes without notice or time to file for habeas, even though the government agrees that … they have a right to have the decision made about whether they even qualify under the proclamation?”
Ensign reserved that option for the government.
“If the (temporary restraining order) is dissolved, the government believes there would not be a limitation and that the statute does not require such notice,” he said.
Last updated 3:48 p.m., Mar. 24, 2025
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