Federal judge says U.S. must give due process to deported Venezuelans

A federal judge on Monday said the U.S. government denied due process to the Venezuelan men it deported to a prison in El Salvador in March after President Trump invoked the Alien Enemies Act.

The case over the Alien Enemies Act first brought into focus critiques about the Trump administration’s lack of due process in its immigration policy.

The American Civil Liberties Union and Democracy Forward challenged the deportation of the Venezuelans, saying the Alien Enemies Act was invoked illegally and that the men should have been given the opportunity to argue against their removal.

Chief Judge James Boasberg of the U.S. District Court for the District of Columbia in his order agreed that they deserved the right to a hearing — whether by bringing them back to the U.S. or allowing them to pursue legal remedies from abroad.

“On the merits, the Court concludes that this class was denied their due-process rights and will thus require the Government to facilitate their ability to obtain such hearing. Our law requires no less,” Boasberg wrote in his opinion.

The Trump administration is likely to appeal.

President Trump around March 15 invoked the 1798 Alien Enemies Act to target members of Tren de Aragua, a Venezuelan prison gang he said was invading the United States. The government sent several planeloads of alleged gang members to El Salvador immediately after invoking the act, including 137 people under the statute, the White House said at the time. (The men have since been returned to Venezuela as part of a prisoner exchange.)

Boasberg imposed a temporary restraining order barring deportations that same evening — but the planes still arrived in El Salvador. The Justice Department argued that the judge had overstepped his authority by inserting himself into questions of foreign policy.

“This ruling makes clear the government can’t just send people off to a brutal foreign prison with zero due process and simply walk away,” said ACLU attorney Lee Gelernt, lead counsel in the case.

“Meaningful opportunity” to make their case

Boasberg in Monday’s order said the U.S. maintained custody over the men while they were imprisoned at a notorious prison in El Salvador, so the court continued to have jurisdiction over their fate. He gave the administration until January 5 to either “facilitate” their return to the U.S., or “to otherwise provide them with hearings that satisfy the requirements of due process.”

He said regardless of whether Trump was lawful in invoking the Alien Enemies Act, the men deserved to have a “meaningful opportunity” to prove they weren’t gang members before being deported.

“Otherwise, a finding of unlawful removal would be meaningless for Plaintiffs, who have already been sent back to Venezuela against their wishes and without due process,” he said. “Expedited removal cannot be allowed to render this relief toothless,” Boasberg said, otherwise there would be nothing to stop the government from “secretly spiriting” people to a foreign country.

Boasberg also certified the group of people removed on March 15 as a class, meaning the Venezuelans who brought the case as plaintiffs could represent the entire group of men removed.

Separately, Boasberg had in July said there was “probable cause” to find the Trump administration in criminal contempt for violating his order to stop the planes going to El Salvador in the first place. An appeals court stepped in earlier this month to put a pause on that issue until at least the new year.