Why rely on the Alien Enemies Act when deportations based on immigration law may be easier?
In a post last night, I noted that the three-judge D.C. Circuit panel that heard arguments yesterday afternoon in the Venezuelan deportation case appeared skeptical of the Trump administration’s position. That’s because the administration now acknowledges that, at least going forward, Venezuelans who are detained solely under President Trump’s Alien Enemies Act (AEA) proclamation are entitled to challenge the government’s allegation that they are alien enemies as defined by the proclamation — or, in this instance, that they are members of the Tren de Aragua (TdA), the vicious Venezuelan international criminal enterprise that the administration quite plausibly says is a de facto arm of the anti-American Maduro regime. As I contended last night, since the aliens have a right to be heard as a matter of due process, it seems inconceivable that the D.C. Circuit will find that they are not entitled to notice prior to being deported.
This bypasses for now the basic question of whether the president properly invoked the AEA. Since Chief Judge James Boasberg of the federal district court in Washington, D.C., was able to sustain his temporary restraining order (TRO) on due process grounds, there is no need, at least for now, to resolve whether, for AEA purposes, the TdA qualifies as a “hostile nation or government,” or whether it has “perpetrated, attempted, or threatened against the territory of the United States” an “invasion or predatory incursion.”
If we get further down the road of AEA detention and removal, Judge Boasberg appears to be leaning in the direction of finding that these are justiciable questions of fact that a court can decide. As he recalls, the Supreme Court in Ludecke v. Watkins (1948) opined that courts may review fact issues that trigger the AEA (e.g., whether there is a “declared war” — when that is the basis for invocation — and “whether the person restrained is in fact an alien enemy”). But he acknowledges that (1) these are more fraught questions than the straightforward one of whether due process is required (it is), and (2) the president’s judgments would be entitled to some measure of deference.
I say “if we get further down the road of AEA detention and removal” because Boasberg’s opinion illustrates that it is unnecessary for the administration to go this route.
Under federal immigration law, the State Department’s February 20 designation of TdA as a foreign terrorist organization makes members of the TdA both deportable and inadmissible (under Section 1182(a)(3)(B) and Section 1227(a)(4)(B) of Title 8, U.S. Code). Since the administration has a basis in immigration law to expel the Venezuelans, and they would have a right to challenge their status as TdA members under either immigration law or the AEA, it is difficult to see why the administration would press the more legally controversial invocation of AEA in non-wartime conditions. Why litigate whether there has been an invasion or predatory incursion if it’s unnecessary?
It is not clear what amount of due process must be afforded to the aliens. Judge Patricia Millett, the Obama-appointee on the D.C. Circuit panel, caused something of a stir by asserting that alleged “Nazis got better treatment” than the Trump administration is giving the Venezuelans. What she was referring to, however, is indisputable: When FDR invoked the AEA, his administration put a process in place that permitted alleged alien enemies to challenge their status. Judge Boasberg described this in the above-linked opinion issued yesterday:
While vigorously deploying that [AEA] power, Roosevelt nonetheless provided for hearings for arrested alien enemies . . . in order to permit them to present facts in their behalf. . . . Alien hearing boards, composed of from three to six civilian members, served without compensation, heard the alien’s evidence and made recommendations which were not binding on the Attorney General. [Citations and quotations omitted.]
By contrast, knowing by 10 a.m. on Saturday, March 15, that the court was planning to hold a hearing at 5 p.m. on whether aliens could properly be deported under the AEA, the Trump administration went forward with plans to deport them; as Boasberg observed, this was “a move that implied a desire to circumvent judicial review.” In any event, how exacting judicial review would be would certainly depend on how exacting and credible is the internal executive process by which it was determined that the aliens are members of TdA.
Final point: I do not know if the Trump administration has information to refute what was presented to Boasberg on behalf of the Venezuelans who were transferred to the custody of El Salvador. If it does, it should get that information into the public domain quickly. Otherwise, this is what the record reflects, from the judge’s opinion:
In Salvadoran prisons, deportees are reportedly “highly likely to face immediate and intentional life-threatening harm at the hands of state actors.” ECF No. 44-4 (Sarah Bishop Decl.), ¶ 63. The country’s government has boasted that inmates in [the Center for Terrorism Confinement (CECOT), where the aliens were transferred] “never leave”; indeed, one expert declarant alleges that she does not know of any CECOT inmate who has been released. See ECF No. 44-3 (Juanita Goebertus Decl.), ¶ 3; see also Bishop Decl., ¶ 23 (“[W]e will throw them in prison and they will never get out.”) (quoting Nayib Bukele (@nayibbukele), X (May 16, 2023, 7:02 p.m.), https://x.com/nayibbukele/status/1658608915683201030?s=20 ). Once inmates enter the prisons, moreover, their families are often left in the dark. See Bishop Decl., ¶ 25 (“In a sample of 131 cases, [it was] found that 115 family members of detainees have not received any information about the whereabouts or wellbeing of their detained family members since the day of their capture.”).
Plaintiffs offer declarations that inmates are rarely allowed to leave their cells, have no regular access to drinking water or adequate food, sleep standing up because of overcrowding, and are held in cells where they do not see sunlight for days. See Goebertus Decl., ¶¶ 3, 11; Bishop Decl., ¶ 31. At CECOT specifically, one declarant states that “if the prison were to reach full supposed capacity . . . , each prisoner would have less than two feet of space in shared cells . . . [which] is less than half the space required for transporting midsized cattle under EU law.” Bishop Decl., ¶ 30. Given poor sanitary conditions, Goebertus points out, “tuberculosis, fungal infections, scabies, severe malnutrition[,] and chronic digestive issues [a]re common.” Goebertus Decl., ¶ 12.
Beyond poor living conditions, Salvadoran inmates are, according to evidence presented, often disciplined through beatings and humiliation. One inmate claimed that “police beat prison newcomers with batons . . . . [W]hen he denied being a gang member, they sent him to a dark basement cell with 320 detainees, where prison guards and other detainees beat him every day. On one occasion, one guard beat him so severely that [he] broke a rib.” Id., ¶ 8. Three prior deportees from the United States reported being kicked in the face, neck, abdomen, and testicles, with one requiring “an operation for a ruptured pancreas and spleen.” Id., ¶ 17. One inmate reported being forced to “kneel on the ground naked looking downwards for four hours in front of the prison’s gate.” Id., ¶ 10. That same prisoner also said that he was made to sit in a barrel of ice water as guards questioned him and then forced his head under water so he could not breathe. Id.
One scholar avers that, since March 2022, an estimated 375 detainees have died in Salvadoran prisons. See Bishop Decl., ¶¶ 15, 43. Although the Salvadoran government maintains that all deaths have been natural, others respond that 75% of them “were violent, probably violent, or with suspicions of criminality on account of a common pattern of hematomas caused by beatings, sharp object wounds, and signs of strangulation on the cadavers examined.” Id., ¶¶ 44–45. When an inmate is killed, there are also reports that guards “bring the body back into the cells and leave it there until the body start[s] stinking.” Id., ¶ 39.
In amassing this information, which was relevant to his conclusion that the aliens facing deportation were liable to be harmed irreparably, Judge Boasberg relied heavily on the work of Juanita Goebertus Estrada, a former Colombian congresswoman now at the left-leaning Human Rights Watch, and a Baruch College academic, Sarah C. Bishop, who (according to her bio at The Conversation) has testified as an expert witness in U.S. immigration proceedings on conditions in El Salvador. I am not in a position to question or assess their work. I would point out, though, that what they’ve reported is not much different from what the U.S. State Department reported in 2023 in its “El Salvador Human Rights Report,” including:
Human rights organizations and media outlets reported complaints of abuse and mistreatment of detainees by prison guards. On July 14, a coalition of human rights organizations at an Interamerican Human Rights Commission public audience stated they collectively interviewed more than 100 released detainees, many of whom reported systemic abuse in the prison system, including beatings by guards and the use of electric shocks. The coalition alleged the treatment of prisoners constituted torture.
On March 25, the newspaper El País reported a man released from Izalco prison said guards beat one of his cellmates to death with batons and the butts of their rifles. He also said guards activated electric stun guns against the prison’s wet floors to deliver electric shocks to all the prisoners in a cell.
Cristosal spoke with the family of a prisoner who died of stomach cancer on February 10, after being released from Zacatecoluca prison on January 28. Cristosal reported his body showed signs of torture, including significant bruising on his back and stomach, as well as signs of malnutrition and gastrointestinal hemorrhaging.
Again, if the administration has information that casts Salvadoran confinement in a better light, it would be in the president’s interest to publish it promptly. Otherwise, what is now a legal controversy could transform into a human rights scandal. As Bush administration veterans of the Abu Ghraib scandal can attest, it’s hard to recover from those.