A judge in Pennsylvania has become the first in the country to allow Donald Trump to use a wartime act to deport alleged Venezuelan gang members.
Stephanie L Haines, who was nominated to the US district court by Mr Trump in 2019, said the 1798 Alien Enemies Act did not require a foreign invasion to be invoked, as other judges have ruled.
But she ruled the Trump administration’s use of the legislation was “constitutionally deficient” and that migrants designated for deportation should be given 21 days’ notice and a chance to appeal the decision in court.
Her decision marks a rare judicial victory for the US president, as judges in New York, South Texas, West Texas and Colorado concluded his use of the act was unlawful.
Mr Trump has attempted to use the Alien Enemies Act since March to deport alleged members of Tren de Aragua (TdA), a Venezuelan gang which he has labelled a foreign terrorist organisation.
It has only been used three times in the past, and never during peacetime: the War of 1812, between Britain and the US, the First World War, and the Second World War.
But Judge Haines ruled on Tuesday the act “does not require an ‘invasion or predatory incursion’ to be ‘perpetrated, attempted or threatened against the territory of the United States by the military of any foreign nation or government’”.
The law was also intended to protect the US from attacks by pirates and robbers, she said, adding: “The court cannot help but ask: Is a Foreign Terrorist Organization like TdA not the modern equivalent of a pirate or robber?”
Her decision opens the door to summary deportations in her district of western Pennsylvania, and may also bode well if the judicial fight over the act heads to the Supreme Court, which is dominated by conservative justices.
When Mr Trump invoked the act in March, he declared the gang represented a de facto invasion of the US by Venezuela because of its links to its president, Nicolas Maduro.
But US intelligence agencies have reportedly concluded TdA’s activities are not being directed by the Maduro government.