A Federal Judge Orders Relief for Alleged Gang Members Deported and Imprisoned Without Due Process
Without such intervention, he warns, the government "could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action."
On April 7 in Trump v. J.G.G., the U.S. Supreme Court unanimously held that foreign nationals who allegedly are subject to immediate deportation as "alien enemies" have a due process right to contest that designation. But where does that leave deportees who were denied that opportunity before they were peremptorily shipped off to prison in El Salvador last March? A preliminary injunction that a federal judge granted on Wednesday supplies an answer: The Trump administration "must facilitate [their] ability" to file habeas corpus petitions and "ensure that their cases are handled as they would have been if the Government had not provided constitutionally inadequate process."
James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, does not get more specific than that. Cognizant of the "sensitive diplomatic or national-security concerns" raised by interactions between the U.S. government and the Salvadoran officials who are imprisoning deportees at its behest, he invites the Trump administration to "propose" how it will comply with his order. But his decision underlines the importance of due process, the constitutional requirement that President Donald Trump sought to evade by invoking the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua.
The named plaintiffs in this case, who are represented by the American Civil Liberties Union (ACLU), "vehemently deny" any affiliation with Tren de Aragua and "claim that they were never able to challenge the accusation before being removed," Boasberg notes. They were "already being transported to the airport and loaded onto planes" bound for El Salvador before Trump published the March 15 proclamation that supposedly justified their removal based on a rarely used, 227-year-old statute that previously had been invoked only during declared wars. They "were not told" where they were going or why.
It turned out they were being transferred to El Salvador's notorious Center for Terrorism Confinement (CECOT) under an agreement with that country's government. "These men allege that they were not informed that they had been designated alien enemies or that they could challenge that designation," Boasberg writes. "Since their removal, they have been held incommunicado at CECOT."
Boasberg likens this situation to the one that confronts Josef K., the protagonist of Franz Kafka's novel The Trial, who "awakens to encounter two strange men outside his room." After he "realizes that he is under arrest," he "asks the strangers why" but "receives no answer." He is told that "proceedings are under way and you'll learn everything in due course." He again asks why he is being arrested. "Now there you go again," a guard replies. "We don't answer such questions." He assures Josef K. that "there's been no mistake" because "our department" is only "attracted by guilt."
Under the Fifth Amendment, Boasberg notes, the government's assertion that it infallibly identifies the guilty "does not suffice." As the Supreme Court confirmed in Trump v. J.G.G., which addressed a temporary restraining order (TRO) that Boasberg issued during an earlier round of the ACLU's litigation, "'it is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings," meaning "the detainees are entitled to notice and opportunity to be heard 'appropriate to the nature of the case.'" Specifically, the justices said, "AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."
The Court nevertheless vacated Boasberg's TRO, ruling that AEA detainees must file habeas corpus petitions in the jurisdiction where they are held rather than challenge their deportation under the Administrative Procedure Act in the District of Columbia. But Boasberg concludes that his intervention is necessary to vindicate that right for deportees who were denied due process.
"We are skeptical of the self-defeating notion that the right to the notice necessary to 'actually seek habeas relief'…must itself be vindicated through individual habeas petitions, somehow by plaintiffs who have not received notice," the Supreme Court said last month in AARP v. Trump. That comment, Boasberg argues, supports his preliminary injunction. "Absent this relief," he warns, "the Government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action."
The ACLU says more than 130 people deported before the Supreme Court's order "remain imprisoned at CECOT." Boasberg's injunction applies to a class consisting of "all noncitizens removed from U.S. custody and transferred" to CECOT on March 15 and 16 "pursuant solely to" Trump's proclamation. It therefore excludes people who were deported under separate legal authority. But it includes people who were subsequently transferred to a different facility. Otherwise, Boasberg says, "they would be arbitrarily excluded from that class—even though their underlying injury meriting injunctive relief would remain unchanged."
After the Supreme Court's ruling in Trump v. J.G.G., Boasberg notes, an Immigration and Customs Enforcement official described "the current parameters of the process the Government believes adequate." It involves "an English-only form that makes no mention of the right to file a habeas petition," coupled with "oral interpretation or assistance" for detainees who do not speak English or cannot read. A detainee then has 12 hours to "express" his "intent to file a habeas petition." If he hits that deadline, he has another 24 hours to file the petition.
The Supreme Court subsequently cast doubt on the Trump administration's understanding of due process. AEA detainees "must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief," the justices said in AARP v. Trump. "Notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster."
Lower courts addressing this question "have uniformly agreed," Boasberg notes. "The amount of time they have deemed constitutionally sufficient to enable detainees to file habeas petitions after receiving notice has ranged from 10 to 21 days—but never as few as 36 hours or even close. Courts have also held that the notice to detainees must be provided in a language they understand [and] must offer enough information for detainees to pursue their right to seek judicial review. At least one court has held that the notice must inform individuals of the 'particular allegations' establishing the Government's case for alien-enemy designation."
The plaintiffs in this case "got none of that," Boasberg observes. They did not even benefit from the farcical version of due process that the government now claims is adequate.
Several federal judges have rejected Trump's dubious interpretation of the AEA, saying it makes no sense to describe alleged Tren de Aragua members as "natives, citizens, denizens, or subjects" of a "hostile nation or government" that has launched an "invasion or predatory incursion against the territory of the United States." Boasberg does not address that issue. Nor does he reach any conclusions regarding the plaintiffs' status under the AEA.
"Perhaps the President lawfully invoked the Alien Enemies Act," Boasberg writes. "Perhaps, moreover, Defendants are correct that Plaintiffs are gang members. But—and this is the critical point—there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government's say-so. Defendants instead spirited away planeloads of people before any such challenge could be made. And now, significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations."
A government "confident of the legal or evidentiary basis for its actions has nothing to fear" from respecting due process, Boasberg writes. "It is, after all, 'central to our system of ordered liberty.'"
Trump has condemned Boasberg as a "Radical Left Lunatic," a "troublemaker" and "agitator" who "should be IMPEACHED!!!" But it is Trump, who treats the right to due process as an inconvenience that can be overridden by presidential fiat, who is proposing a radical change to our legal system.
