Plaintiffs challenging the Trump administration’s application of a war authority to deport suspected gang members cautioned that allowing the president to proceed unchecked could result in anyone being classified as an enemy alien.
The attorneys representing Venezuelan migrants in their lawsuit against the government stated in a filing to the appellate court on Tuesday: “The ramifications of the government’s stance are immense. If the President is able to label any group as enemy aliens under the Act, and that label is unchallengeable, then there are no constraints on who can be sent to a Salvadoran prison, nor any limits on the duration of their detention.”
Individuals under the 1798 Alien Enemies Act can be swiftly arrested, detained, and deported without the due process protections guaranteed by U.S. immigration law, including the chance to appear before a judge and seek asylum. Instead, they could be treated as enemy aliens and processed under the laws of wartime America. President Trump invoked this act on Saturday and utilized it to send two planes carrying accused Tren de Aragua gang members to a prison in El Salvador.
During a hearing on Saturday, D.C. U.S. Chief District Judge James Boasberg halted their deportation, leading to an immediate appeal by the Justice Department.
On Tuesday, an Immigration and Customs Enforcement officer shared additional information regarding the Trump administration’s deportation flights involving alleged gang members, but maintained that the government possessed the authority to refuse a judge’s order instructing the planes to return to the U.S., even while they were already airborne.
According to a sworn declaration from Robert Cerna, the acting field office director of ICE’s enforcement and removal operations, the two planes “left U.S. territory and airspace before 7:25 p.m.” on Saturday—40 minutes after D.C. District Chief Judge James Boasberg had verbally ordered them to return to the U.S. during a hearing that evening.
The government reiterated on Tuesday that because the planes were over international waters and airspace by the time the judge issued his order for them to turn back, Boasberg no longer had jurisdiction over the migrants.
Attorneys for the Trump administration had also contended during a hearing on Monday that Boasberg lacked the authority to redirect the planes since the judge had not formalized his order in writing. The judge countered that his directive pertained to the planes, irrespective of their position in the air.
Cerna noted that the government’s application of the Alien Enemies Act to justify the removal of accused Tren de Aragua members was signed on Friday evening, a day prior to the flights being publicly announced by the White House on Saturday.
His testimony is part of a court-mandated series of responses to Boasberg, who expressed frustration regarding the government’s insufficient details on the flights and deportation processes during the hearing on Monday. The remaining answers Boasberg requested are expected to remain confidential due to “operational issues,” as a Justice Department attorney informed the court, opting not to disclose this information publicly.
These details are likely to encompass whether more planes have departed the U.S. with alleged Tren de Aragua gang members, a timeline demonstrating when the flights took off from the U.S. and landed in El Salvador, and a count of lingering gang members in U.S. custody.
Cerna’s sworn account did not furnish all this data, although he did mention that 54 Tren de Aragua members are currently detained in the U.S., with about 172 on the non-detained docket, indicating they are not in government custody while their immigration proceedings are ongoing. Additionally, approximately 32 are in criminal custody with active detainers—meaning ICE has requested they be held for up to 48 hours post-scheduled release.
Notwithstanding Boasberg’s ruling, 261 individuals were deported to El Salvador on Saturday, 137 of whom were removed under the Alien Enemies Act due to alleged gang affiliations, according to a senior administration official.
The federal civil lawsuit against Mr. Trump and other administration officials was initiated by five Venezuelan men detained in immigration custody across Texas and New York local jails.
Boasberg’s ruling suspends the deportation of the plaintiffs and other migrants for 14 days.
