A federal appellate court on Wednesday declined to lift a lower court order that has stopped the Trump administration from using a presidential proclamation to deport alleged Venezuelan gang members to an El Salvador prison.
In a 2-1 order, a panel of the U.S. Court of Appeals for the District of Columbia Circuit found no compelling reason to lift a temporary restraining order from Judge James E. Boasberg of the U.S. District Court for the District of Colombia.
The case, brought by two civil rights groups on behalf of individuals who sought to contest their removal under the proclamation, has become a flashpoint in the Trump administration’s criticism of judges who have ruled to temporarily stop policies nationwide.
Judge Karen LeCraft Henderson, appointed by President George H.W. Bush, wrote in a concurring statement that the basic elements aren’t present to reverse the stay, such as the likelihood of success of the Trump administration in litigation.
“At this early stage, the government has yet to show a likelihood of success on the merits,” Henderson wrote. “The equities favor the plaintiffs. And the district court entered the TROs for a quintessentially valid purpose: to protect its remedial authority long enough to consider the parties’ arguments.”
Henderson took issue with President Donald Trump’s use of the concept of “invasion” to justify the invocation of the Alien Enemies Act to remove foreign nationals who are allegedly part of the gang Tren de Aragua.
Henderson noted the law was enacted in 1798 in the years shortly after the American Revolutionary War when the concept of “invasion” was “well known to the Fifth Congress and the American public.”
“The theme that rings true is that an invasion is a military affair, not one of migration,” Henderson wrote. “What evidence does the government muster against the weight of this evidence? It marshals a lone contemporary dictionary and then plucks the third-order usage of the term after skipping over its (still) more common military meaning.”
Judge Patricia Millett, an Obama appointee, in a concurring statement, detailed a lack of due process the Trump administration afforded to migrants it has sought to deport by deeming them members of Tren de Aragua.
Numerous reports have emerged of these individuals, including those who were sent to a prison in El Salvador, disputing they’re members of a gang, saying they were falsely designated as such based on the presence of their tattoos.
“Judicial review has always been available to noncitizens detained or removed under the AEA,” Millet wrote. “During the War of 1812, Chief Justice John Marshall and federal District Judge St. George Tucker ordered a British subject released because the local marshal had acted beyond his delegated authority by detaining the plaintiff without proper notice.”
Judge Justin Walker, a Trump appointee, echoed the questioning he made on civil procedure during the arguments in a dissenting statement, pointing out that detainees are already petitioning courts in Texas to stop and one court in Texas has already issued an order blocking the removal of a migrant.
“The district court here in Washington, D.C. — 1,475 miles from the El Valle Detention Facility in Raymondville, Texas — is not the right court to hear the Plaintiffs’ claims,” Walker wrote. “The Government likely faces irreparable harm to ongoing, highly sensitive international diplomacy and national-security operations. The Plaintiffs, meanwhile, need only file for habeas in the proper court to seek appropriate relief.”
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