Plaintiffs Contesting Tren de Aragua Membership Claims / Alien Enemies Act Application Still Can't Sue Pseudonymously

From Judge James Wesley Hendrix (N.D. Tex.) Friday in W.M.M. v. Trump (for more on the earlier Fifth Circuit en banc decision, see here):

On March 14, 2025, the President invoked the Alien Enemies Act—a federal statute that permits the President to deport foreign nationals who are engaged in an "invasion or predatory incursion" against the United States—to detain and remove members of Tren de Aragua, a Venezuelan terrorist group that traffics drugs and engages in other criminal activity. The petitioners, on behalf of a proposed class of Venezuelan nationals detained under the President's Proclamation, brought a habeas action in this Court. The petitioners argue that (1) the Proclamation exceeds the President's authority under the Alien Enemies Act and (2) the detainees have not received sufficient notice to challenge their removal.

After trips to the Fifth Circuit and the U.S. Supreme Court, the matter is back before this Court…. [T]he petitioners seek leave for the proposed class representatives to proceed under pseudonyms. The Court denies that motion because the named petitioners have not substantiated their conclusory allegations with evidence that they will suffer harm if their identities are disclosed. The Fifth Circuit found the petitioners' allegations insufficient to support their request to use pseudonyms [though it] {denied the petitioners' motion "without prejudice to any future determination by the district court regarding whether to allow any new class representatives to proceed under pseudonyms"}, and the petitioners have not persuaded this Court to depart from the Fifth Circuit's sound analysis….

Federal Rule of Civil Procedure 10(a) "require[s] plaintiffs to disclose their names in the instrument they file to commence a lawsuit." "Public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings." … "Judicial records belong to the American people; they are public, not private, documents." … The Fifth Circuit thus recognizes a "strong presumption against party pseudonymity."

In certain circumstances, however, courts may allow parties to proceed under pseudonyms. Specifically, where a case involves "matters of a sensitive and highly personal nature," the usual practice of disclosing the parties' identities "yields 'to a policy of protecting privacy in a very private matter.'" … Additionally, the Fifth Circuit has considered whether the party has shown that he will face "possible threatened harm" if his identity is disclosed….

D.A.A., T.I.A., and E.A.A. "have not shown that disclosure of their names would require them to disclose information of the utmost intimacy." … The petitioners do not request pseudonymity because the disclosure of their identities would reveal intimate details about their religion, sexuality, or family life. Rather, the petitioners do not want to disclose their identities because they do not want to publicize their alleged connection to TdA, a terrorist organization. But the Fifth Circuit has never suggested that this kind of information counts as a "sensitive and highly personal" matter that warrants pseudonymity.

Further, the petitioners dispute their designation as members of TdA. In other words, the petitioners allege that this designation is false. Yet the Fifth Circuit has implied that pseudonymity is proper only when the sensitive information—concerning, for example, one's religious beliefs—is true. Because the petitioners' alleged connection with TdA is, in their view, not true—and because it is not the kind of information that justifies pseudonymity—this Stegall factor cuts against the petitioners.

The Fifth Circuit also rejected the petitioners' argument that courts "should treat 'immigration matters, like the ones here, that disclose personal information,' as intimate information warranting pseudonymity," because the petitioners failed to explain how revealing "immigration matters" would "'disclose [any] personal information,' let alone information that makes pseudonyms appropriate." The petitioners have not provided any additional support for this argument to justify a departure from the Fifth Circuit's conclusion.

Relatedly, the Fifth Circuit rejected the petitioners' argument that they should be allowed to proceed under pseudonyms because several petitioners are seeking asylum. Two petitioners—T.I.A. and E.A.A.—seek asylum. The petitioners cite 8 C.F.R. § 208.6(a), which provides that information contained in an application for asylum "shall not be disclosed without the written consent of the applicant." But disclosing the petitioners' names will reveal only the fact that they have applied for asylum, not any information contained in the petitioners' respective asylum applications. {The information in the petitioners' respective asylum applications would likely not come before this Court anyway because the Court "lacks jurisdiction to hear an application for asylum."} Further, the petitioners still have not "shown that Venezuela penalizes asylum seekers." …

[P]etitioners [also] argue that public disclosure of their identities would subject them to physical violence in Venezuela. The Fifth Circuit rejected this argument because the petitioners expressed "only 'generalized concerns' about potential retaliation, directed toward either them or their families, in Venezuela or other countries as a result of the U.S. government identifying them with TdA." In the Fifth Circuit's view, the petitioners failed to produce "'plausible predictions of possible future violence,' let alone evidence of 'express threats or incidents' to anyone, including them or their families, arising out of identification with TdA." The petitioners' "evidence-less, generalized fears" thus did not "overcome the presumption against pseudonymity."

The Fifth Circuit's sound conclusion follows from the principle that courts should "not usually allow parties to proceed anonymously based on generalized concerns." Indeed, the Fifth Circuit recognized that "[c]ourts generally allow pseudonymity if there is 'reasonable[]' 'fear[]' of 'retaliatory physical … harm to the requesting party or even more critically, to innocent non-parties,' which may be considered in light of 'the anonymous party's vulnerability to such retaliation.'" "Express threats of violence would likely qualify, as would specific past incidents of violence or vandalism." But the "[l]ack of such express threats or incidents—or at least lack of highly plausible predictions of possible future violence—will usually count against pseudonymity."

Seeking to surmount this hurdle, the petitioners have now provided "evidence not previously provided to the Fifth Circuit[] regarding risk of retaliation due to the government's designation" of the petitioners as members of TdA. In particular, the petitioners have provided an expert's declaration describing how TdA members face threats of physical violence from Venezuelan "paramilitary groups," "right-wing opposition leaders," and "[r]ival gangs." The expert's declaration also says that the Venezuelan government features TdA members—many of whom are detained at the Center for Terrorist Confinement (CECOT) in Tecoluca, El Salvador—in political propaganda and exposes them to political violence.

But this additional evidence still provides "only 'generalized concerns' about potential retaliation." Each petitioner asserts that he "faces serious danger" of "retaliation, coercion, extortion, threatened prosecution, and violence from [TdA]-associated groups, rival gangs, and others" in El Salvador or Venezuela. But the petitioners have identified neither "express threats or incidents" nor "highly plausible predictions of possible future violence" to support pseudonymity. And the expert's declaration suffers from the same flaw. It says that alleged members of TdA "sometimes" face physical threats from groups that oppose the Venezuelan government, and "may" face threats or attacks from rival gangs. The two-page declaration lists no "[e]xpress threats of violence" or "specific past incidents of violence or vandalism" to support its generalized assertions.

Further, while the expert's declaration suggests that the Venezuelan regime may use members of TdA detained at CECOT as "propaganda tools" and subject those detainees to "political violence," these suggestions are conclusory. The expert's declaration does not even connect (1) the potential disclosure of the petitioners' identities in this lawsuit with (2) the likelihood that the petitioners will be used as "propaganda tools" and accordingly face "political violence" in El Salvador or Venezuela. The declaration merely states that its conclusions are based on "the situation in Venezuela for the men sent by the United States to CECOT in March 2025." In this respect, the declaration suggests that the Venezuelan regime singled out these men—and "disclos[ed] personal details about them"—solely on account of their detention at CECOT. Whether the detainees' identities were disclosed in a lawsuit in the United States was of no matter.

In any event, the Court lacks sufficient evidence to support the inference that denying the petitioners' motion to proceed under pseudonyms will cause them to face threats or physical harm in the future. Thus, the petitioners have not persuaded this Court that its analysis of this issue should differ from the Fifth Circuit's, given the generalized, conclusory nature of the petitioners' allegations.

{The Court previously granted the original named petitioners' motion to proceed under pseudonyms, because of "the sensitive and personal information about their immigration status and histories in this case." But the Court did so in a summary order at the inception of this litigation on a rapid timeline. Considering the en banc Fifth Circuit's statement on this matter and the lack of compelling evidence to distinguish the petitioners' present arguments from the arguments that the Fifth Circuit found unpersuasive, the Court finds it appropriate to deny the petitioners' motion for leave to proceed under pseudonyms.}