A US appeals court on Wednesday denied a bid by the Trump administration to lift a lower court order barring summary deportations of undocumented migrants using an obscure wartime law that is more than 200 years old.
A three-judge panel of the US Court of Appeals voted 2-1 to temporarily keep in place the ban on deportations carried out under the 1798 Alien Enemies Act (ANA).
“The government’s suggestion that judicial review of the Alien Enemies Act is categorically foreclosed is incorrect,” wrote Judge Karen Henderson.
“At this early stage, the government has yet to show a likelihood of success on the merits,” added Henderson, an appointee of Republican president George H.W. Bush.
Judge Patricia Millett, an appointee of former Democratic president Barack Obama, also voted to keep the temporary ban on deportations using the AEA in place while the third judge on the panel, Justin Walker, an appointee of President Donald Trump, dissented.
Trump sent two planeloads of alleged members of the Venezuelan gang Tren de Aragua to a prison in El Salvador on March 15 after invoking the AEA, which has only been used previously during the War of 1812, World War I and World War II.
James Boasberg, chief judge of the US District Court in Washington, issued a restraining order that same day temporarily barring the administration from carrying out any further deportation flights under the AEA, which the Justice Department appealed to remove.
Millett said the Venezuelan immigrants were being summarily deported based on the government’s allegations alone “with no notice, no hearing, no opportunity — zero process — to show that they are not members of the gang.”
“If the government can choose to abandon fair and equal process for some people, it can do the same for everyone,” she said.
Attorneys for several of the deported Venezuelans have said that their clients were not members of Tren de Aragua, had committed no crimes and were targeted largely on the basis of their tattoos.
During a court hearing on Monday at which the government sought to have the order lifted, Millett said “Nazis got better treatment” from the United States during World War II.
Justice Department attorney Drew Ensign argued at the hearing that the judge’s order “represents an unprecedented and enormous intrusion upon the powers of the executive branch” and “enjoins the president’s exercise of his war and foreign affairs powers.”
The AEA gives the government vast powers to round up citizens of a “hostile nation” during wartime.
Lee Gelernt, a lawyer for the American Civil Liberties Union, which filed suit against the deportations, told the appeals court panel that the Trump administration was using the AEA “to try and short circuit immigration proceedings.”
The government would likely immediately resume AEA deportations if the temporary restraining order was lifted, Gelernt said.
Boasberg, the district court judge, has said migrants subject to potential deportation under the AEA should be “entitled to individualized hearings to determine whether the Act applies to them at all.”
Trump has repeatedly lashed out at Boasberg, even going so far as to call for his impeachment, a remark that drew a rare public rebuke from Supreme Court Chief Justice John Roberts.
The contentious case has raised concerns among legal experts that the administration may potentially ignore the court order, triggering a constitutional crisis. – AFP.
