Justice Department Memo Claims Alien Enemies Act Allows Warrantless Home Searches and No Judicial Review
The memo says "Alien Enemies" aren't subject "to a judicial review of the removal in any court of the United States."
Newly uncovered guidance from the Justice Department claims the Alien Enemies Act (AEA) allows federal law enforcement officers to enter the houses of suspected gang members without a warrant and remove them from the country without any judicial review.
In a March 14 memorandum, obtained by the open government group Property of the People through a public records request and first reported by USA Today, Attorney General Pam Bondi instructs federal law enforcement officers on how to carry out arrests on members of the Venezuelan gang Tren de Aragua (TDA), which President Donald Trump has declared are "alien enemies" under the AEA.
The Trump administration has refused to disclose many of the operational details of its unprecedented invocation of the 1798 wartime law to send alleged TDA members to a prison in El Salvador under an agreement with that country's president, Nayib Bukele. The memo is one of the first public glimpses at the Trump administration's claims that it can identify, pursue, arrest, and deport migrants, unconstrained by the Fourth Amendment or due process.
While the memo encourages officers to cooperate with federal prosecutors, it notes that "a judicial or administrative arrest warrant is not necessary to apprehend a validated Alien Enemy."
The memo also allows officers to arrest suspects they encounter in the field "upon a reasonable belief that the alien meets all four requirements to be validated as an Alien Enemy."
"This authority includes entering an Alien Enemy's residence to make an AEA apprehension where circumstances render it impracticable to first obtain a signed Notice and Warrant of Apprehension and Removal," the memo continues.
The memo includes a previously published "Alien Enemy Validation Guide" that uses a scorecard to determine suspected TDA members. That scorecard includes alleged symbolic ties to the gang, such as tattoos and clothing. However, as multiple media outlets have reported, Venezuelan migrants have been flagged as violent gang members for generic and inoffensive tattoos, like an autism awareness symbol.
Once a suspect is apprehended, Bondi claims they are "not entitled to a hearing before an immigration judge, to an appeal of the removal order to the Board of Immigration Appeals, or to a judicial review of the removal in any court of the United States."
"The documents reveal the Trump administration has authorized every single law enforcement officer in the country, including traffic cops, to engage in immigrant roundups explicitly outside due process," Ryan Shapiro, executive director of Property of the People, said in a press release. "With Trump also pushing to deport U.S. citizens, we are lurching ever closer to authoritarian rule."
Since the memo was issued, the Supreme Court has unanimously ruled that AEA detainees are subject to due process and can challenge their imprisonment through habeas corpus petitions. Several lower federal courts have also rejected the Trump administration's claims of AEA deportations being beyond judicial review.
Last week, Judge J. Harvie Wilkinson, appointed by former President Ronald Reagan to the U.S. Court of Appeals for the 4th Circuit, wrote that the Trump administration's claims "should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear."
"The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order," Wilkinson warned. "Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done."
The Justice Department did not immediately return an inquiry asking if it has updated or rescinded its guidance in light of the Supreme Court and other federal court's rulings.
