ACLU files suit to block Alien Enemies Act deportations

The American Civil Liberties Union (ACLU) filed a suit on behalf of two Venezuelan migrants who expect to be deported under the Alien Enemies Act (AEA) and face possible removal to a Salvadoran prison.

The suit is the first in the wake of a Supreme Court decision lifting a temporary restraining order from a lower court that had blocked the Trump administration from using the law to deport people. 

President Trump signed a proclamation on March 14 igniting the wartime powers that have only been used three other times in U.S. history. It’s the first time the law has been used to target gang members, and shortly after signing the order the Trump administration sent more than 100 Venezuelans to El Salvador’s Terrorism Confinement Center, known by its Spanish acronym CECOT.

“The AEA has only ever been a power invoked in time of war, and plainly only applies to warlike actions: it cannot be used here against nationals of a country — Venezuela — with whom the United States is not at war, which is not invading the United States, and which has not launched a predatory incursion into the United States,” the ACLU wrote in the suit filed in New York.

The Trump administration has claimed that the Tren de Aragua gang is acting at the behest of the Venezuelan government as a basis for activating the powers.

A judge barred the Trump administration from removing the men before a hearing at 10 a.m. Wednesday.

The two men were parties to the original suit from the ACLU seeking to bar the Trump administration from using the Alien Enemies Act as a basis for deportations.

A late Monday ruling from the Supreme Court determined that the D.C. court did not have jurisdiction over the matter, saying that the men would have to sue where they were detained, promoting the suit in New York, where both men are being held in the Orange County Correctional Facility.

But the decision also made clear the Trump administration must provide reasonable notice for Venenzuelans to challenge their deportation — an instruction that comes as many of those deported have denied any affiliation with the gang.

“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 wrote in a per curium order, adding that the decision “confirm[s] that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.”

The new suit alleges the Trump administration has failed to do so now that it is free to resume deportation flights under the Alien Enemies Act.

“Respondents seek to move Petitioners in secret, without due process, to a prison in El Salvador known for dire conditions, torture, and other forms of physical abuse — possibly for life. This has already borne out for over 130 individuals on March 15 who have lost all contact with their attorneys, family, and the world,” they wrote.

The Trump administration has also sent Salvadoran nationals it’s accused of being members of the MS-13 gang to CECOT.

But in doing so it admitted in court that it sent a Maryland man to the prison despite his being protected from removal under a 2019 court order. In that case, the Justice Department said the man, Kilmar Abrego Garcia, was deported due to an administrative error.

The Supreme Court in the case sided with the Trump administration, pausing a lower court ruling that ordered the government to secure Abrego Garcia’s return by Monday.

Updated at 4:22 p.m. EDT