The Volokh Conspiracy
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Lee Kovarsky on the Venue Issue in the Alien Enemies Act Case
A leading expert on habeas corpus explains why the Trump Administration is wrong to claim the case must be heard in Texas, rather than Washington, DC.
In my recent post on the DC Circuit's decision upholding a temporary restraining order blocking deportations under the Alien Enemies Act, I explained why the DC Circuit majority is right on the merits. See also my other writings on the subject, such as those here, here, and here. But I could not address Judge Walker's dissent arguing that the case should have been heard in a different venue (in Texas, where the five named Venezuelan immigrant plaintiffs are now being detained, rather than in DC). I lack expertise on that technical issue. Now the Trump Administration has made this issue the central focus of their attempt to persuade the Supreme Court to intervene to vacate the TRO.
Professor Lee Kovarsky (University of Texas School of Law) is one of the nation's leading experts on habeas corpus and associated jurisdictional issues. He has generously agreed to write a guest post for us on this issue. The rest of this post is his explanation of why the Trump Administration's position on venue is badly wrong. The material that follows is all by Prof. Kovarsky, not me (Ilya Somin):
JGG v. Trump is shaping up as a generationally important case. It features pretextually activated war powers, rendition of civilians to foreign sites of potential torture, and extreme noncompliance with judicial orders. But in the early stages of litigation, the case centers on an obscure habeas corpus question. Since I co-author the case book they use to teach habeas courses in most law schools, I want to address DOJ's (very bad) argument that JGG is a habeas case that can proceed only in Texas.
Start with some background. On March 15, 2025, President Trump invoked authority under the 1798 Alien Enemies Act ("AEA")—thereby unlocking emergency powers to remove alleged members of Tren de Aragua ("TdA"), a designated foreign terrorist organization based in Venezuela. The AEA requires that the United States be at war with, invaded by, or subject to the predatory incursion of a foreign government. For that reason, President Trump's proclamation asserted that TdA was an alter ego of the Venezuelan government, and that its transnational criminality was both an "invasion" and a "predatory incursion." The legality of the proclamation is dubious, but its legality vel non is not the subject of this post.
Five Venezuelan nationals who were already in removal proceedings got wind of the administration's plan to expel them, and they sued in a D.C. federal district court. Insisting that they were not TdA members, they asserted various grounds for relief, including claims under the Administrative Procedure Act ("APA"). After issuing a temporary restraining order ("TRO") for the individually named Plaintiffs, the district court provisionally certified a class of all similarly situated noncitizens and issued a second TRO to protect them during the pendency of the litigation. The TROs are in effect until April 12, while the district court considers a motion for preliminary injunction. Before the district court, and in passing, DOJ argued that habeas was the exclusive remedy for the Plaintiff's grievances. And if habeas is the exclusive remedy, the argument goes, then the Plaintiffs had to litigate in Texas—which contains the detention center holding the Plaintiffs. DOJ lost appellate arguments on the TRO, but Judge Walker's dissent adopted the habeas-exclusivity argument. DOJ then made Judge Walker's position into its leading argument to the Supreme Court, where a request to stay the lower court relief remains pending.
Judge Walker and DOJ misunderstand habeas exclusivity, quite profoundly.
There is some doctrine making habeas the exclusive vehicle for certain remedies against certain custodians, but it doesn't apply in the JGG scenario. During the 1960s and 1970s, people serving state criminal sentences got creative with 42 USC § 1983, seeking relief that implied that their sentences were unlawful or otherwise required reduction. The problem was that, while habeas remedies for criminal convictions were subject to carefully tailored restrictions, § 1983 remedies weren't. In this context and in this context only, the Supreme Court told a subset of these § 1983 claimants to knock it off, and to stick to habeas as a means of challenging the lawfulness of criminal sentences. The "Preiser line" of cases specifying permissible § 1983 litigation in this context include: Preiser v. Rodriguez (1973), Wolf v. McDonnell (1974), Heck v. Humphrey (1994), Edwards v. Balisok (1997), Muhammed v. Close (2004), Wilkinson v. Dotson (2005), and Skinner v. Switzer (2011). All these cases involve the administration of state criminal sentences, and not one has anything to do with immigration detention—let alone removal or rendition to a foreign detention site.
The arguments that Judge Walker and DOJ make derive from the Preiser line, whether the line is cited directly or operates as precedent for the lower-court cases that are mentioned. The line's basic logic is that a challenge to a criminal sentence is a "core" habeas challenge, and any order that would directly invalidate or reduce a sentence is "core" relief. If either (1) the challenge or (2) the relief wasn't "core," then § 1983 remedies were available. Hence Dotson: "Section 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner."
The JGG claims aren't "core" in any sense. The Plaintiffs aren't challenging state criminal sentences, or even their removability generally. In fact, they're not even seeking release. All the TROs and injunction seek is a bar on transfer under the AEA. The form of relief the plaintiffs seek isn't just "outside the core;" it's on the other side of the universe.
On whether this type of relief is "core," I'll cede the floor to Justice Alito. Here's his majority opinion in DHS v. Thuraissigiam (2020), on whether the Suspension Clause permitted Congress to strip habeas power over expedited removal procedure: "Rejecting th[e] use of habeas [to bar transfers to foreign sovereigns], we noted that habeas is at its core a remedy for unlawful executive detention and that what these individuals wanted was not simple release but an order requiring them to be brought to this country. Claims so far outside the core of habeas may not be pursued through habeas." I'll also borrow from Chief Justice Roberts, writing for the Court in Munaf v. Geren (2008): "[H]abeas is not appropriate [when claimants seek to preclude transfer to another sovereign so that they may face criminal charges]. Habeas is at its core a remedy for unlawful executive detention. The typical remedy for such detention is, of course, release. But here the last thing petitioners want is simple release … ." Thuraissigiam and Munaf don't mean that habeas claimants can never stop transfer orders, but those decisions extinguish DOJ's argument that such remedies are "core" habeas relief.
The whole idea—that an order precluding foreign-prison rendition sits at some historical "core" of Anglo-American habeas tradition—is risible. The United States didn't even begin to exclude and deport noncitizens until the very end of the nineteenth century. Even then it sent the Chinese people it excluded back to China, and not to a prison in some other country.
DOJ makes a related-but-distinct exclusivity argument tracing to a D.C. Circuit case: LoBue v. Christopher (1996). I cannot understand why DOJ is emphasizing LoBue, which cuts in favor of the Plaintiffs. In LoBue, the prisoner sought a declaratory judgment that extradition was unlawful—state action for which, LoBue itself highlights, the APA didn't permit suit against the named defendants. LoBue quite explicitly distinguished declaratory judgment challenges to extradition, which had to go through habeas, from APA challenges to immigration removal, which didn't. In so doing, it flagged the two Supreme Court cases that had blessed the use of the APA to challenge removal orders: Shaughnessy v. Pedreiro (1955) (deportation) and Brownell v. We Shung (1956) (exclusion). DOJ's reliance on LoBue is nothing short of bizarre.
I'll note two other weaknesses in DOJ's habeas-exclusivity argument. First, the exclusivity holdings assume generally that non-habeas remedies can be displaced because habeas will adequately test the detention at issue. In this case, however, DOJ is arguing that the administration can remove the Plaintiffs the second the injunction lapses, and it will thereafter argue (I assume) that the Plaintiffs are beyond the scope of habeas power. The Venezuelan nationals would be shipped to a Salvadoran "mega prison," and DOJ will presumably argue that habeas power doesn't reach a foreign custodian that holds foreign nationals. I'm not sure that argument is correct because the United States seems to retain some control over the custody by way of contract with the facility, but the argument certainly cannibalizes the habeas exclusivity argument that DOJ is making right now.
Second, DOJ's argument for habeas exclusivity builds from the premise that, because the Plaintiffs are in Texas facility, a habeas case couldn't proceed in D.C. But that's not clear at all. The leading case on the question, Rumsfeld v. Padilla (2004), suggests otherwise. Padilla held that the "immediate custodian rule … does not apply when a habeas petitioner challenges something other than his present physical confinement." Separately, and even in cases that challenge "present physical confinement," Padilla indicated that the immediate custodian rule might lapse if "there was any attempt to manipulate behind [the prisoner's] transfer," or if the Government "attempted to hide from [the prisoner's] lawyer where it had taken him." And if the immediate custodian rule is inapplicable, then Kristi Noem could be named as a respondent in a D.C. lawsuit seeking habeas relief and there is no forum-selection issue.
All of this is to say that I do not think highly of DOJ's habeas arguments or of Judge Walker's dissent. They are invoking a rule of habeas exclusivity that the Supreme Court has never entertained—even remotely—and they are relying on D.C. Circuit precedent that supports the Plaintiffs.
