Venezuelans subject to removal under wartime act have 12 hours to contest

BROWNSVILLE, Texas — Migrants subject to removal from the U.S. under the contested Alien Enemies Act are getting about 12 hours to decide if they want to contest their removal, according to court documents unsealed Thursday — a window the government contends complies with a Supreme Court decision giving those detained under the act a “reasonable” time to appeal.

Lawyers for people subject to removal say that’s far too short a period.

“This is a dramatic turn in these cases,” said Lee Gelernt, an attorney for the American Civil Liberties Union representing migrants. “They’re not giving any information about how they should do it, how much time they would have to do it, and 12 hours is clearly insufficient for them to reach an attorney and decide what they want to do and how they should do it.”

Under the wartime act, the government has sent Venezuelans accused of belonging to the Tren de Aragua from the U.S. to El Salvador’s prison known as CECOT.

An Immigration and Customs Enforcement official said in court documents that people are considered subject to deportation if they don’t say they want to challenge their removal within 12 hours after being served with a form about their legal rights. They then have 24 hours to file documents in court.

The form is only available in English, though ICE said it’s read to people in a language they understand. It tells them they can make a phone call, but doesn’t explicitly say they can challenge their removal under the 18th century law.

The government had wanted to file the document under seal, claiming the information was law enforcement sensitive, but a judge ordered it be made public. The ACLU says the time period violates the Supreme Court order that allowed the Trump administration to continue deportations under the Alien Enemies Act but required the government to give detainees a “reasonable time” to argue to a judge that they should not be removed.

That high court order has led to multiple new lawsuits across the country, including the Texas one, over the invocation of the act, which has only been used three times before in U.S. history, most recently during World War II. Then, the ACLU says, suspected Nazis were given 30 days to challenge their designation in court.

A judge in Colorado on Tuesday ruled that the government had to give at least 21 days notice. In appealing that decision, the Trump administration argued it was providing constitutional due process under the current timeline. “The notice will allow the noncitizen a reasonable time to indicate and then file a petition for a writ of habeas corpus as well as telephone access,” the Justice Department’s Tim Ramnitz wrote.

Government attorneys previously told a federal judge in Washington that detainees were given a 24-hour notice. The official also explained in his Texas declaration that detainees subject to the Alien Enemies Act are often held for several days before removal, allowing them more time to express intention to file and contest their removal.

An earlier version of the form filed in federal court in Washington explicitly said there was no opportunity to ask a judge to intervene. But that was before the Supreme Court intervened.