Free Abrego Garcia

[Muda69]

From a newsletter I read occasionally:

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Woke up this morning to this overnight text from a Southern friend:

Trump is refusing to obey the Supreme Court over the order to bring that dude back from El Salvador. He using the tactic of “you can’t make me.” He met with the president of El Salvador today who announced he would not be sending the dude back. So our President met with a foreign leader to collude on how to ignore a lawful order from the top of the a judicial branch. According to my high school civics, that’s treason and it’s punishment by execution. F—k Trump. I’m done with him and I regret my vote…already.

Wait … what happened? This:

In an Oval Office meeting with President Trump on Monday, President Nayib Bukele of El Salvador said that he would not return a Maryland man who was wrongly deported from the United States and sent to a notorious Salvadoran prison.

Mr. Bukele, who has positioned himself as a key ally to Mr. Trump, in part by opening his country’s prisons to deportees, sat next to the president and a group of cabinet officials who struck a combative tone over the case, which has reached the Supreme Court.

“Of course I’m not going to do it,” Mr. Bukele said when reporters asked if he was willing to help return the man, Kilmar Armando Abrego Garcia, a 29-year-old father of three who was deported last month. The Trump administration has acknowledged that his deportation was the result of an “administrative error.”

The message from the meeting was clear: Neither Mr. Trump nor Mr. Bukele had any intention of returning Mr. Abrego Garcia, even though the Supreme Court has ruled that he should come back to the United States. The case has come to symbolize Mr. Trump’s defiance of the courts and his willingness to deport people without due process.

Even as someone accustomed to Trump’s edge-pushing, this was … a lot. This is, in fact, outrageous. It is intolerable. It is wicked. It cannot stand.

Here’s the White House line:

But the evidence that he is a gang member is not at all solid, and there is no evidence that he is a terrorist. He was here legally, though that’s not how he came. He should have been deported using normal channels years ago, but he wasn’t, and now he has the legal right to stay here. The man was sent away without any chance to prove his case. Andy McCarthy, the former federal prosecutor, explains. Excerpt:

The Venezuelans were lawlessly deported to San Salvador on March 15 aboard three flights, one of which included Abrego Garcia, who is a Salvadoran national. In his case, there is a 2019 federal immigration court order prohibiting his repatriation to El Salvador. That’s because the immigration judge credited his fear-of-persecution claim. Regardless of whether one believes his story (I find it self-serving and unpersuasive), the judge’s finding still stands because the Justice Department in Trump’s first term failed to refute it or appeal it, and Attorney General Pamela Bondi, who leads the DOJ in Trump’s second term, failed to take available action to reverse it. (The immigration court is a component of the DOJ, not an independent judicial court.) As has become habitual, the Trump DOJ decided it could skip the law’s due process mandates and just expel Abrego Garcia since, as Vice President Vance puts it, “We can’t just ignore the president’s desires.”

What if those desires are — what’s the word? — illegal? That’s what is at issue. Abrego Garcia should have been deported much earlier, as he came here illegally. But he obtained legal status allowing him to remain in the US. Maybe that was a mistaken ruling, but nevertheless, that is the law. Even Trump’s government admits that Abrego Garcia was deported because of an “administrative error”. Trump is now saying that the US Government has no authority to compel El Salvador to send one of its citizens back to America. This is absurd: all Trump has to say to Bukele is, “Send him back,” and it will be done.

McCarthy:

Under the known terms of the U.S.–El Salvador agreement, there appears to be no reason, other than its own stubbornness, that the Trump administration cannot obtain Abrego Garcia’s immediate transfer from the Salvadoran prison (where he remains constructively in U.S. custody) to a federal prison in the United States that would be convenient for producing Abrego Garcia at required federal court proceedings in the District of Maryland.

The Trump team keeps repeating the line that Abrego Garcia is a “terrorist,” and that justifies what they’re doing. But that has not been proven! He denies it, and his denial in court hearings in the past were persuasive to the courts. What gives Trump special knowledge, such that he knows better than judges who have heard the evidence?

What we know is that in 2019, the Trump administration alleged that Abrego Garcia is in MS-13 — based primarily on the claim of a confidential informant, and the fact that he wore a Chicago Bulls hat and a hoodie. The informant said Abrego Garcia was part of MS-13 in New York — a place in which he has never lived. Abrego Garcia strongly denies he has anything to do with MS-13. He could be lying. How are we to know without due process? In any case, there has never been any substantiation of the claim that this man was or is in MS-13.

Besides which, the Supreme Court ruled 9-0 that Abrego Garcia has the right to be in America. Maybe the Court is completely wrong, but that is how the system works. Trump is only defying the Court now based on a technicality. As far as I’m concerned, Abrego Garcia, who entered the US illegally, should be deported. There is a way to do that legally: bring him back, lift the court stay preventing him from being deported, and send him back legally. After all, SCOTUS said that Abrego Garcia had been wrongfully deported because of an “administrative error.”

This was the position of the Trump administration … until suddenly, it wasn’t. Stephen Miller went on Fox News and claimed otherwise:

That view had already been advanced in court papers by a top official at U.S. Immigration and Customs Enforcement and by D. John Sauer, Mr. Trump’s newly appointed solicitor general. It was also offered during a court hearing this month by Erez Reuveni, a Justice Department lawyer who was handling the case — that is, until he was fired this weekend, according to a person familiar with the matter.

In one of the more remarkable moments in his appearance on Fox News, Mr. Miller blamed Mr. Reuveni — and only Mr. Reuveni — for having planted the idea that Mr. Abrego Garcia’s deportation had been in error.

“A D.O.J. lawyer who has since been relieved of duty, a saboteur, a Democrat, put into a filing, incorrectly, that this was a mistaken removal,” Mr. Miller said.

That assertion, however, flew in the face of the fact that other Trump officials had said the exact same thing.

One of them was Mr. Sauer, a top-ranking Justice Department official. Another was Robert Cerna, the acting field office director for enforcement and removal operations at ICE.

Early in the case, Mr. Cerna submitted a sworn declaration about Mr. Abrego Garcia’s deportation, and made clear that it was a mistake.

“This removal was an error,” he said.

Moreover, just a few weeks before he was fired, Mr. Reuveni was praised as a “top-notched” prosecutor by his superiors in an email announcing a recent promotion.

They fired an excellent Justice Department lawyer for advancing the same view as ICE and the Trump-appointed Solicitor General? I guess Team Trump needed a scapegoat rather than admit that they are in error here.

It seems that the White House is using a technicality in the SCOTUS ruling to avoid doing what common sense and common decency requires: bringing Abrego Garcia back and sending him home the legal way. (And “home” means to El Salvador, not necessarily to that brutal maximum security prison there.) This is a bright red line, I think, because the administration is not only transparently concocting a narrative to justify its mistaken, illegal deportation of this guy, but it is also flagrantly defying the Supreme Court. Again, it’s not exactly a direct defiance, because the Court left just enough space for Team Trump to pretend that it has no power to compel El Salvador to send Abrego Garcia back.

But think about it: what if you were illegally deported to a Supermax prison in El Salvador, and the Supreme Court ordered that you be returned to the US. How would you feel if the administration threw up its hands and said, “Sorry, but we can’t tell the government of El Salvador what to do”? Keep in mind that even though Abrego Garcia is not a US citizen, and was, in fact, in the US illegally, he still had the protection of the law.

This is a bright red line, having to do with the rule of law. I am generally supportive of the aggressive stance Trump has taken on deportations of illegals. This problem has grown nearly uncontrollable because of previous administrations, both Democratic and Republican, not taking it seriously. I anticipate that there will be bureaucratic errors in this process, and don’t consider them to invalidate the mission. But when those mistakes come to light, then the administration must backtrack, and do things legally.

This eagerness to defy the courts is destabilizing of the legal and constitutional order. The only way, it seems, that the administration can tamp down public anger is to keep repeating the line that Abrego Garcia is an MS-13 member — an allegation based on a single information, that has never been substantiated.

The administration’s willingness to leave a possibly innocent man languishing in that El Salvador prison shocks the conscience. So do stories like this, about Merwil Guitierrez, a 19-year-old Venezuelan illegal taken off the streets of New York and sent to that same prison. The kid was swept up in an ICE raid and shipped off to the prison in El Salvador, despite the fact that there is no evidence that he had anything to do with a gang, and the absence of any criminal charges against him. Again, the fact that he was in America illegally is sufficient evidence to deport him. But to dispatch this teenager to live as a captive among some of the hardest criminals in the world? In what moral universe does that make sense?

As one Fourth Circuit federal appeals court judge wrote in the three-judge panel’s April 7 ruling denying the government’s claim:

The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.

This is a fundamental rule of law question. So I ask you again: if the Trump administration erroneously and illegally put your husband, son, or brother — an American citizen — on a deportation flight to El Salvador, and when called on by the Supreme Court to bring you back, said, “Hey, we can’t make the Salvadorans let him go” — how would you feel about it? From that Fourth Circuit ruling:

The Government’s argument that there is a public interest in removing members of “violent transnational gangs” from this country is no doubt true, but it does nothing to help the Government’s cause here. As noted, the Government has made no effort to demonstrate that Abrego Garcia is, in fact, a member of any gang, nor did the Government avail itself of the “procedural mechanism under governing regulations to reopen the immigration judge’s prior order[] and terminate its withholding protection.” The Government may not rely on its own failure to circumvent its own ruling that Abrego Garcia could not be removed to El Salvador. More importantly, the Government cannot be permitted to ignore the Fifth Amendment, deny due process of law, and remove anyone it wants, simply because it claims the victims of its lawlessness are members of a gang. Nor can the Government be permitted to disclaim any ability to return those it has wrongfully removed by citing their physical presence in a foreign jurisdiction. This is a slippery -- and dangerous -- constitutional slope. If due process is of no moment, what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen? [

I see today that members of the administration are on message about Abrego Garcia being a “terrorist” and “MS-13 member”. What is preventing them from the showing the evidence they have that stand up that claim? You can’t make the disturbing aspects of this case go away by simply asserting over and over that the guy is in MS-13, and hoping that people will believe you just because you say it often enough. Here is a link to detailed information about Abrego Garcia’s detention, and the hearsay evidence that got him tagged as a gang member.

Who is the law here — the Supreme Court, or Donald Trump? This is indeed “a slippery — and dangerous — constitutional slope.” Do we want to be rid of illegal immigrants so badly that we are prepared to accept something like this? Where then would you and I hide if the US Government decided that the country would be better off if we were stuffed away in some Salvadoran hellhole prison, despite our legal right to be in the United States?

This is indeed a very, very slippery slope.  Trump is 100% wrong on this. His actions are illegal.  One would hope that Congress would have the fortitude to impeach him over it.    

[Muda69]

Federal Judge in Deportation Case Finds Probable Cause To Hold the Trump Administration in Contempt: https://reason.com/2025/04/16/federal-judge-in-deportation-case-finds-probable-cause-to-hold-the-trump-administration-in-contempt/

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In an opinion issued on Wednesday, a federal judge found that the evidence "strongly support[s]" the conclusion that the Trump administration "willfully disobeyed" a March 15 order temporarily barring the removal of suspected Venezuelan gang members as "alien enemies." James Boasberg, chief judge of the U.S. District Court for the District of Columbia, says the government's actions "demonstrate a willful disregard" for that order, "sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt."

Boasberg's temporary restraining order (TRO) in J.G.G. v. Trump initially applied to five named plaintiffs threatened with immediate deportation under the Alien Enemies Act (AEA). Later that day, he expanded the TRO to cover anyone subject to removal under President Donald Trump's March 15 proclamation invoking the AEA against members of the Venezuealan gang Tren de Aragua. Although the Supreme Court subsequently vacated the TRO, Boasberg says, that does not affect his contempt inquiry because "it is a foundational legal precept that every judicial order 'must be obeyed'—no matter how 'erroneous' it 'may be'—until a court reverses it."

The Supreme Court concluded that the plaintiffs should have filed habeas corpus petitions in Texas, where they were detained, rather than seeking relief under the Administrative Procedure Act in the District of Columbia. But the Court's "later determination that the TRO suffered from a legal defect," Boasberg says, "does not excuse the Government's violation."

As Boasberg sees it, that violation reflects the government's determination to avoid judicial review. In early March, weeks before Trump issued his proclamation, the Department of Homeland Security (DHS) "interrogated Venezuelans in its custody about alleged membership in Tren de Aragua and transferred many of those it deemed gang members to El Valle Detention Facility, located outside Harlingen, Texas, not far from the Mexico border," Boasberg notes. The reason for those transfers became clear early in the morning on March 15, a Saturday, when DHS "reportedly loaded scores of Venezuelans onto buses, drove them to a nearby airport, and began putting them onto three planes."

This happened hours before Trump published his proclamation, which implausibly averred that Tren de Aragua qualifies as a "foreign nation or government" and that its criminal activities within the United States amount to an "invasion or predatory incursion." In Trump's view, that counterintutive interpretation of the AEA gave him broad discretion to peremptorily deport any suspected member of the gang.

"As the planes sat on the tarmac, officials refused to answer the deportees' questions about where they would be taken," Boasberg writes. The detainees on those planes included the five named plaintiffs in J.G.G. v. Trump, whose attorneys filed suit at 1:12 a.m., apparently after "catching wind of the impending Proclamation." They sought a TRO blocking their clients' removal, arguing that Trump was misconstruing key terms in the AEA and that the plaintiffs had been erroneously identified as Tren de Aragua members.

Around 8 a.m., Boasberg learned that he had been randomly assigned to the case. At 9:40 a.m., after the plaintiffs' lawyers told him at least one of their clients "was reportedly already aboard a removal flight," Boasberg issued a TRO in light of the "exigent circumstances" to "freeze in place the status quo until a hearing could be held." The government's lawyers confirmed that the TRO "ha[d] been disseminated to the relevant executive branch agencies." As a result, several of the named plaintiffs "were abruptly removed from planes," which Boasberg views as "evidence that Defendants were able, if they wished, to ensure that people on the ground knew relatively quickly of developments in the Court proceedings."

The government's respect for the legal process seems to have ended there. At 10:15 a.m., Boasberg informed counsel for both sides that he would hold an emergency hearing that day to consider whether the TRO should be extended to other detainees, which he scheduled for 5 p.m. Shortly after Trump's proclamation appeared on the White House website at 3:53 p.m., one of the plaintiffs' lawyers told Boasberg "he believed that two flights, both operated by a contractor used by Immigrations and Customs Enforcement for deportations, were scheduled to depart Harlingen that afternoon." The lawyer "expressed concern that the flights might imminently take off with his five clients and members of the potential class on board."

During the hearing, Boasberg asked the government's lawyer, Drew Ensign, "whether there were any "removals under this Proclamation planned…in the next 24 or 48 hours." Ensign said he did not know, but "we can certainly investigate that and report that back to you." Boasberg adjourned the hearing at 5:22 p.m. so Ensign could do that, saying he would reconvene at 6 p.m.

Meanwhile, the DHS was proceeding with the deportations. "During the short window that the Court was adjourned," Boasberg notes, "two removal flights took off from Harlingen—one around 5:25 p.m. and the other at about 5:45 p.m." But "those later-discovered flight movements…were obscured from the Court when the hearing resumed shortly after 6:00 p.m. because the Government surprisingly represented that it still had no flight details to share." When pressed, Ensign "stated that the 'operational details' he had learned during the recess 'raised potential national security issues,' so they could not be shared while the public and press listened to the hearing through a call-in line." Yet even after the court "disconnected the public line so that only counsel for the parties were present," Ensign said "he had no information to share at that time."

After gradually realizing that the government "might be rapidly dispatching removal flights in an apparent effort to evade judicial review while also refusing to provide any
helpful information," Boasberg considered the arguments for and against issuing a broader TRO. He ultimately "ordered that for 14 days the Government was enjoined from conducting the 'removal' of any noncitizens in its custody solely on the basis of the Proclamation." Around 6:45 p.m., he explained what that meant.

"You shall inform your clients of this immediately," Boasberg told Ensign. "Any
plane containing these folks that is going to take off or is in the air needs to be returned to the United States….Those people need to be returned to the United States. However that's accomplished, whether turning around a plane or not [dis]embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately." Half an hour after the hearing, Boasberg entered a written version of his order that he said reflected his oral instructions.

"Despite the Court's written Order and the oral command spelling out what was required for compliance, the Government did not stop the ongoing removal process," Boasberg writes. "According to Defendants, the two planes that took off during the adjournment departed U.S. airspace before the Court's 6:45 p.m. oral command and 'landed abroad' sometime after the Court posted the Minute Order at 7:25 p.m." Those planes, which carried "members of the Plaintiff class covered by the TRO," "apparently touched down in Honduras at 7:37 p.m. and 8:10 p.m., and remained there for several hours before taking off again for El Salvador. After the planes landed in El Salvador shortly after midnight on Sunday, most of the passengers were apparently transferred into one of that country's prisons, known as the Center for Terrorism Confinement (CECOT)."

Boasberg here is relying on a timeline compiled by The Washington Post because the government has persistently refused to answer his questions about those flights, saying they implicated sensitive diplomatic and national security concerns. He thinks that excuse is implausible, especially since the president himself "had retweeted a three-minute video that portrayed a host of operational details" about the flights.

By "mid-Sunday morning," in any event, "the picture of what had happened the previous night came into clearer focus. It appeared that the Government had transferred members of the Plaintiff class into El Salvador's custody hours after this Court's injunction prohibited their deportation under the Proclamation. Worse, boasts by Defendants intimated that they had defied the Court's Order deliberately and gleefully." Secretary of State Marco Rubio, for example, shared "a post in which, above a news headline noting this Court's Order to return the flights to the United States, the President of El Salvador wrote: 'Oopsie…Too late,'" followed by a laughing emoji.

Boasberg's broadened TRO was indeed "too late," the Trump administration argued, because the planes had left U.S. airspace before he issued the oral or written versions. Boasberg prohibited "removing" the detainees, the government's lawyers said, and that had already happened. But Boasberg rejects that understanding of removal, noting that it is inconsistent with the context of his order and his explicit instruction that detainees must be "returned to the United States," which might mean "turning around a plane" or refraining from dropping them off at the final destination.

It should have been clear to the government, Boasberg says, that "removing" the detainess meant transferring them to foreign custody, not merely transporting them beyond U.S. borders. If there was any doubt of that, he adds, the government could have sought clarification, which it never did.

Boasberg concludes that his order was "sufficiently clear, reasonably specific, and unequivocal." He also thinks the evidence indicates that the government willfully violated that order.

"From the opening hours of Saturday, the Government's conduct betrayed a desire to
outrun the equitable reach of the Judiciary," Boasberg writes. "Hustling class members to an airport before the Proclamation had even been published and in the face of a suit that sought a TRO was bad enough. The decision to launch planes during the afternoon hearing was even worse. The Government knew as of that morning that the Court would hold a hearing on whether anyone in its custody could, consistent with the law, be removed pursuant to the Act—and yet it nonetheless rushed to load people onto
planes and get them airborne. Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the Government itself later told the Supreme Court is 'obviously' available to them."

What happens next? Boasberg suggests that the government can "purge its contempt" by "voluntarily obeying the court order," which would avoid the need for criminal sanctions. "The most obvious way for Defendants to do so here is by asserting custody of the individuals who were removed in violation of the Court's classwide TRO so that they might avail themselves of their right to challenge their removability through a habeas proceeding"—a right that the Supreme Court affirmed even as it vacated Boasberg's TRO.

Under the terms of the TRO, "the Government would not need to release any of those individuals, nor would it need to transport them back to the homeland," Boasberg writes. "The Court will also give Defendants an opportunity to propose other methods of coming into compliance, which the Court will evaluate."

Otherwise, Boasberg says, he will "proceed to identify the individual(s) responsible for the contumacious conduct by determining whose 'specific act or omission' caused the noncompliance." That inquiry would begin with "declarations," which might be supplemented by "hearings with live witness testimony under oath" or "depositions conducted by Plaintiffs." The next step "would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to 'request that the contempt be prosecuted by an attorney for the government.'" If the government "'declines' or 'the interest of justice requires,' the Court will 'appoint another attorney to prosecute the contempt.'"

Since it is hard to imagine the Trump administration cooperating with any of this, the case could provide an illuminating test of what happens when the executive branch openly defies a court order. Those of us who still think the rule of law matters may not like the results.

So, does the Rule of Law really matter to the Trump administration? What about his MAGA supporters in general?  

[Bobref]

Folks, this is a real constitutional crisis in the making. The contempt power is the only tool judges have to enforce their rulings. Ultimately, a federal judge can order a contemnor arrested by US Marshals, and jailed. And this is criminal, not civil, contempt. Question: does a conviction for criminal contempt satisfy the requirement of “high crimes and misdemeanors” the Constitution requires for impeachment?

This is going to get worse before it gets better.

[Irishman]

7 hours ago, Bobref said:

Folks, this is a real constitutional crisis in the making. The contempt power is the only tool judges have to enforce their rulings. Ultimately, a federal judge can order a contemnor arrested by US Marshals, and jailed. And this is criminal, not civil, contempt. Question: does a conviction for criminal contempt satisfy the requirement of “high crimes and misdemeanors” the Constitution requires for impeachment?

This is going to get worse before it gets better.

I looked up the line of succession. You could easily make the case that the 18 in line are all complicit. Hell, most of those 18 were in the Oval Office when Trump and Bukele met with the press. 

[Sparty]

Buddy was here illegally and a member of MS-13.  
 

Nobody is above the law.  
 

Judges getting arrested too.  
 

More folks to come too, I’d imagine.  
 

 

[Muda69]

14 hours ago, Sparty said:

Buddy was here illegally and a member of MS-13.  
 

Nobody is above the law.  
 

Judges getting arrested too.  
 

More folks to come too, I’d imagine.  
 

 

Do you have objective proof of Mr. Garcia's MS-13 membership?  From what I have read it is basically hearsay from a paid informant.   And the Trump administration has admitted his expelling to El Salvador was "“an administrative error”.  Why don't have the cajones and decency to correct their mistake?  Oh, I forgot, everything Trump and his cronies say is automatically correct and righteous.  Trump is the law, right?

[Sparty]

54 minutes ago, Muda69 said:

Do you have objective proof of Mr. Garcia's MS-13 membership?  From what I have read it is basically hearsay from a paid informant.   And the Trump administration has admitted his expelling to El Salvador was "“an administrative error”.  Why don't have the cajones and decency to correct their mistake?  Oh, I forgot, everything Trump and his cronies say is automatically correct and righteous.  Trump is the law, right?

Dude is right where he belongs.  Out of this country.  Thankfully.  

[Bobref]

Just now, Sparty said:

Dude is right where he belongs.  Out of this country.  Thankfully.  

You may be right. You may be wrong. But one thing is indisputable: Mr. Garcia has not had the due process the Constitution mandates. That’s the more important point, and the one the Trump administration keeps trying to avoid. The goal is a worthwhile one. But it has to be done according to the law. That’s what makes us the “good guys.”

[Sparty]

4 minutes ago, Bobref said:

You may be right. You may be wrong. But one thing is indisputable: Mr. Garcia has not had the due process the Constitution mandates. That’s the more important point, and the one the Trump administration keeps trying to avoid. The goal is a worthwhile one. But it has to be done according to the law. That’s what makes us the “good guys.”

He didn’t follow due process while entering the country.  Nor did his wife when he beat the hell out of her.  Don’t care. Criminal is gone. 1 less POS who illegally entered the country.  

Constitution covers citizens.  Not illegals 

[Muda69]

3 minutes ago, Sparty said:

Constitution covers citizens.  Not illegals 

Wrong. Must be that North Newton education.

 

 

[Muda69]

Trump's Understanding of Due Process Is Just As Farcical As His Definition of 'Alien Enemies': https://reason.com/2025/04/25/trumps-understanding-of-due-process-is-just-as-farcical-as-his-definition-of-alien-enemies/

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Two weeks ago, the U.S. Supreme Court unanimously held that foreign nationals threatened with summary deportation as "alien enemies" have a due process right to challenge that designation through habeas corpus petitions. As the Court explained in Trump v. J.G.G., that meant alleged members of the Venezuelan gang Tren de Aragua "must receive notice" that "they are subject to removal" under the Alien Enemies Act (AEA) "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."

As the American Civil Liberties Union (ACLU) notes in a lawsuit it filed on Friday, the Trump administration maintains that it is obeying that order by giving AEA detainees 12 hours to indicate whether they plan to file habeas petitions, then another 24 hours to do so. If they fail to meet those extremely tight deadlines, they can be immediately shipped off to El Salvador, where the Salvadorian government has agreed to imprison them at its notorious Terrorism Confinement Center (CECOT).

That notion of due process, the ACLU argues, is plainly inconsistent with the Supreme Court's order, relevant case law, and historical practice. "The lack of adequate notice is all the more concerning," it says, because "designees are at grave risk of erroneous removal due to the government's dubious methods for identifying alleged [Tren de Aragua] members." Those methods include an "alien enemy validation guide" that relies on iffy evidence such as tattoos, clothing, social media posts, and "associating" with "known" Tren de Aragua members. The ACLU notes that relatives of some deportees sent to CECOT "maintain that they have no connection at all" to the gang.

The ACLU also reiterates its challenge to President Donald Trump's dubious interpretation of the AEA. In a March 15 proclamation, Trump invoked that 1798 law to describe Tren de Aragua members as "alien enemies," which counterintuitively implies that the gang is a "foreign nation or government" that has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States."

Even while affirming the due process rights of AEA detainees, the Supreme Court said they must file habeas petitions in Texas, where they are being held, rather than seek relief under the Administrative Procedure Act in the U.S. District Court for the District of Columbia. The justices therefore vacated a temporary restraining order (TRO) that James Boasberg, the chief judge of that court, issued on March 15 in response to the ACLU's original lawsuit. The ACLU nevertheless filed its new motion in D.C., which it argues is appropriate for two categories of AEA detainees.

More than 130 people deported before the Supreme Court's order "remain imprisoned at CECOT," the ACLU says. Those deportees are effectively still in U.S. custody, it argues, in light of the Trump administration's arrangement with El Salvador, which is being paid to imprison them at the U.S. government's behest. But since they are "being detained abroad and outside any judicial district," the ACLU says, the appropriate venue is the District of Columbia, where the relevant federal officials are located.

The ACLU is seeking an order requiring the government to "immediately request and take all reasonable steps to facilitate the return" of those deportees from "Respondents' jailer in El Salvador." It notes that the Supreme Court recently upheld such an order in a case involving an accused member of the MS-13 gang who was illegally sent to CECOT because of an "administrative error."

The ACLU is also seeking a preliminary injunction on behalf of suspected Tren de Aragua members who are in criminal custody within the United States. As of last month, the government said 32 people subject to AEA deportation fell into that category. Although the usual rule is that habeas corpus petitions must be filed against a detainee's "immediate custodian," the Supreme Court has said that rule does not apply when a detainee is challenging "his future confinement" in a different place.

That "more expansive definition of the 'custody' requirement," the Court noted in 1973, "made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve" and "enabled a petitioner held in one State to attack a detainer lodged against him by another State." In this case, the ACLU argues, that means AEA detainees in U.S. criminal custody can challenge their future confinement in El Salvador by appealing to a federal judge in D.C.

The ACLU is asking for an order that blocks the removal of those detainees and requires the government to "provide immediate, adequate notice of designation to each subclass member and class counsel." It says that would entail "a reasonable opportunity of no less than 30 days to challenge their designation, detention, and removal under the AEA."

That would be consistent with the government's practice during World War II, when people designated as "alien enemies" had that much time to challenge their detention and removal. The government also gave those individuals an opportunity to voluntarily leave the United States. Here, by contrast, the government has not only deported accused gang members, including people who insist they were erroneously identified as such, without notice or an opportunity to be heard; it has contracted with a foreign government to imprison them indefinitely without due process.

The ACLU notes that "detainees at CECOT are subject to torture—including regular beatings, waterboarding, and use of implements on fingers to force confessions—in addition to ill treatment, overcrowding, lack of access to counsel, lack of access to healthcare and food, and physical abuse by both prison personnel and gangs." It says they therefore "have been subjected to conditions that are much worse than those at [Immigration and Customs Enforcement] detention facilities in the United States"—worse, in fact, than the conditions for "prisoners serving criminal sentences in most places in the world."

According to the lawsuit, AEA detainees who want to avoid that fate still have no practical recourse, despite the Supreme Court's order upholding their right to due process. The government dodged a subsequent TRO in the Southern District of Texas by moving "a large group of Venezuelans" to the Northern District of Texas, the ACLU says. Then "a judge in that district denied a TRO as to the named petitioners and deferred decision on class certification" based on his understanding that the government would not seek to remove the proposed class members "without adequate notice."

The government's idea of "adequate notice" became clear when it "quickly distributed AEA notices to detainees and not long after began loading them onto vehicles," the lawsuit says. "The English-only form, not provided to any attorney, nowhere mentioned the right to contest the designation or removal, much less explained how detainees could do so. It also did not provide a timeline by which designees needed to seek habeas relief."

The government's reading of the AEA is just as farcical as its definition of due process. Prior to Trump's proclamation identifying alleged Tren de Aragua members as "alien enemies," that 227-year-old statute had been invoked just three times: during the War of 1812, World War I, and World War II. "The government seeks to invoke this limited wartime authority to execute removals wholly untethered to any actual or imminent war or to the specific conditions Congress placed in the statute," the ACLU notes.

The Supreme Court has not yet addressed the legality of Trump's proclamation. But the historical evidence overwhelmingly indicates that Congress understood an "invasion or predatory incursion against the territory of the United States" in military terms. In support of that conclusion, the ACLU cites contemporaneous dictionary definitions, correspondence among the Founders, court decisions in the early 19th century, and the U.S. Constitution, which "in every instance" uses the terms invade and invasion "in a military sense."

That understanding also comports with the AEA's surrounding language and with the context in which Congress enacted it. The statute applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States" (even when a war has not been declared). "At the time of passage," the ACLU notes, "the United States was preparing for possible war with France and already under attack in naval skirmishes. French ships were attacking U.S. merchant ships in United States waters. Congress worried that these attacks against the territory of the United States were the precursor to all-out war with France."

Trump's equation of Tren de Aragua with a "foreign nation or government" is equally problematic. "By no stretch of the statutory language can [Tren de Aragua] be deemed a 'foreign nation or government,'" the ACLU says. "Those terms refer to an entity that is defined by its possession of territory and legal authority." It adds that the historical context of imminent war with France "also reflects Congress's intent to address conflicts with foreign sovereigns, not criminal gangs."

Tellingly, Trump's proclamation does not explicitly assert that Tren de Aragua is a "foreign nation or government," although it does aver that the Venezuelan government has "ceded ever-greater control over [its] territories to transnational criminal organizations." The proclamation "notably does not say that [Tren de Aragua] operates as a government in those regions," the ACLU notes. "In fact, the Proclamation does not even specify that [Tren de Aragua] currently controls any territory in Venezuela. And even as the Proclamation singles out certain Venezuelan nationals, it does not claim that Venezuela is invading the United States."

Adding to the confusion, Trump refers to "members" of Tren de Aragua as "alien enemies." But the AEA defines that term as "natives, citizens, denizens, or subjects of the hostile nation or government." It makes no sense to say that members of Tren de Aragua are "natives, citizens, denizens, or subjects" of the gang. And as the ACLU notes, Trump is not claiming to be at war with Venezuela.

The government initially argued that courts could not assess the plausibility of Trump's puzzling definitions because it was a "political question." But at the Supreme Court, the Trump administration's lawyers conceded that detainees "may be able to obtain narrow review of 'the construction and validity of the statute,'" focused on "questions like 'whether the detainee is an alien, and whether the detainee is among the 'natives, citizens, denizens, or subjects of the hostile nation' within the meaning of the Act." The Court, after all, had said as much in the 1948 case Ludecke v. Watkins, which is where those quotes come from.

"Nowhere did Ludecke suggest that questions of statutory interpretation are beyond the
courts' competence," the ACLU notes. "Indeed, four years later, the Court reversed a government World War II removal decision because '[t]he statutory power of the Attorney General to remove petitioner as an enemy alien ended when Congress terminated the war.'" And federal courts "have reviewed a range of issues concerning the meaning and application of the AEA's terms" in a long line of cases.

The "political question" doctrine "exists primarily to reinforce the separation of powers," the ACLU notes. "But applying the doctrine here would undermine Congress's constitutional authority, because it would render the limits that Congress wrote into the statute unenforceable."

Whether or not the ACLU succeeds in this particular case, in other words, the courts ultimately will have to determine whether Trump's invocation of the AEA against alleged gangsters makes any sense in light of the statute's language and history. Spoiler alert: It does not.

Mr. Garcia is not an "Alien Enemy" of the USA.   And the Trump administration will fail in trying to prove that in a court of law.

 

[Sparty]

1 hour ago, Muda69 said:

Wrong. Must be that North Newton education.

 

 

Since when does the constitution cover illegals Frankfort boy?

52 minutes ago, Muda69 said:

Trump's Understanding of Due Process Is Just As Farcical As His Definition of 'Alien Enemies': https://reason.com/2025/04/25/trumps-understanding-of-due-process-is-just-as-farcical-as-his-definition-of-alien-enemies/

Mr. Garcia is not an "Alien Enemy" of the USA.   And the Trump administration will fail in trying to prove that in a court of law.

 

Yes he is and that POS is exactly where he belongs.  Go with him and do us all a favor.  
 

want to see your outcry for the innocent AMERICANS killed by these illegals.   You won’t bc you can’t whine and cry about it.  Go watch CNN 

[Muda69]

On 4/28/2025 at 10:52 AM, Sparty said:

Since when does the constitution cover illegals Frankfort boy?

Yes he is and that POS is exactly where he belongs.  Go with him and do us all a favor.  
 

want to see your outcry for the innocent AMERICANS killed by these illegals.   You won’t bc you can’t whine and cry about it.  Go watch CNN 

I know it is difficult for you Sparty, drinking the MAGA kool-aid that all immigrants, illegal or not,  are just waiting in the wings for a chance as you put it to "kill innocent Americans".   But please try to stay on topic and tell me exactly what murder is Mr. Garcia accused of here? 

And I don't watch CCN. Or Fox News, Or MSNBC. 

 

[Sparty]

1 hour ago, Muda69 said:

I know it is difficult for you Sparty, drinking the MAGA kool-aid that all immigrants, illegal or not,  are just waiting in the wings for a chance as you put it to "kill innocent Americans".   But please try to stay on topic and tell me exactly what murder is Mr. Garcia accused of here? 

And I don't watch CCN. Or Fox News, Or MSNBC. 

 

To quote you, “Do your own homework.”

[Bobref]

On 4/28/2025 at 8:39 AM, Sparty said:

Constitution covers citizens.  Not illegals

I don’t know where you got that idea, but you’re dead wrong. It’s been well established since Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953), that undocumented aliens are entitled to a due process hearing before deportation. The Court held in Plyler v. Davis in 1982, and in several cases since, that the due process and equal protection clauses of the 14th Amendment apply to undocumented immigrants. 

Sparty: Often wrong … but never in doubt.

Edited May 2 by Bobref

[Sparty]

59 minutes ago, Bobref said:

I don’t know where you got that idea, but you’re dead wrong. It’s been well established since Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953), that undocumented aliens are entitled to a due process hearing before deportation. The Court held in Plyler v. Davis in 1982, and in several cases since, that the due process and equal protection clauses of the 14th Amendment apply to undocumented immigrants. 

Sparty: Often wrong … but never in doubt.

So let me get this straight.  These illegals can break the law entering our country, but can’t get legally deported for being a criminal, illegal alien?  Yeah.  I’ll take the constitutional lawyers advising the POTUS over yours.  
 

 

[Sparty]

New video footage released of this illegal alien you two are defending, smuggling 8 OTHER illegals into the country.  
 

Wish you defended his wife that he beat the shit out of.  Or the other ladies and gentlemen that have been hurt/killed/ murdered by these criminals breaking the law.  

Edited May 2 by Sparty

[Bobref]

21 minutes ago, Sparty said:

So let me get this straight.  These illegals can break the law entering our country, but can’t get legally deported for being a criminal, illegal alien?  Yeah.  I’ll take the constitutional lawyers advising the POTUS over yours.  
 

Yet another wrong decision on your part. You’re on a roll. You might want to try thinking for yourself  instead of just parroting the party line. Read the cases yourself. They have a nice synopsis before the opinion itself.

And the people advising POTUS are just telling him what he wants to hear. That’s why his policies keep drawing injunctions all over the country.

[Sparty]

22 minutes ago, Bobref said:

Yet another wrong decision on your part. You’re on a roll. You might want to try thinking for yourself  instead of just parroting the party line. Read the cases yourself. They have a nice synopsis before the opinion itself.

And the people advising POTUS are just telling him what he wants to hear. That’s why his policies keep drawing injunctions all over the country.

I’m good.  I trust these constitutional lawyers.
He’s still doing and getting done, what WE THE PEOPLE elected him (electorally and popularly) to do.  

Thank God for POTUS Trump and thank God Biden and that cackling goof are gone.  

[Sparty]

But please don’t forget all the illegals Barry Obama deported.  Or does this not “keep you up at night?”  Barry’s hypocrite wife/husband can’t sleep because of POTUS Trump doing the same EXACT thing as her husband.  
 

Keep clutching those pearls boys.  

[Muda69]

15 hours ago, Sparty said:

To quote you, “Do your own homework.”

lol, it's clear you have no answer.  Nice attempt at a dodge though.

 

[Muda69]

9 hours ago, Sparty said:

New video footage released of this illegal alien you two are defending, smuggling 8 OTHER illegals into the country.  
 

Wish you defended his wife that he beat the shit out of.  Or the other ladies and gentlemen that have been hurt/killed/ murdered by these criminals breaking the law.  

It's customary and reasonable to provide links to said video footage.  Like this:

Here is your clueless "fearless leader".

Again, where are the charges that Mr. Garcia murdered someone?

 

[Bobref]

@Sparty doesn’t understand that it’s not the individual I’m defending. It’s the Constitution. Even the most low life criminal is entitled to due process. It’s called the “American way.”

[Muda69]

17 minutes ago, Bobref said:

@Sparty doesn’t understand that it’s not the individual I’m defending. It’s the Constitution. Even the most low life criminal is entitled to due process. It’s called the “American way.”

Sparty no longer believes in the American way, he believes in the MAGA/Trump way.  Which are two different things.

 

Edited May 2 by Muda69

[Sparty]

2 hours ago, Muda69 said:

It's customary and reasonable to provide links to said video footage.  Like this:

Here is your clueless "fearless leader".

Again, where are the charges that Mr. Garcia murdered someone?

 

SAS

2 hours ago, Muda69 said:

It's customary and reasonable to provide links to said video footage.  Like this:

Here is your clueless "fearless leader".

Again, where are the charges that Mr. Garcia murdered someone?

 

He owned that POS media member. GTFOH.  

2 hours ago, Bobref said:

@Sparty doesn’t understand that it’s not the individual I’m defending. It’s the Constitution. Even the most low life criminal is entitled to due process. It’s called the “American way.”

Low life ILLEGAL ALIEN criminal. FIFY

Where is all the outrage for the people murdered?