‘Nazis got better treatment,’ judge says of deportees in Alien Enemies Act case

WASHINGTON — A federal appeals court judge pressed lawyers for the Trump administration Monday about its use of the Alien Enemies Act to deport people alleged to be Venezuelan gang members, saying the “Nazis got better treatment” during World War II.

U.S. Circuit Judge Patricia Millett of the District of Columbia Circuit made the remark as she questioned Justice Department attorney Drew Ensign about the alleged Tren de Aragua gang members who were flown to a prison in El Salvador on March 15, after President Donald Trump invoked the wartime authority against the gang.

Millett, whom President Barack Obama appointed to the bench, said deportees weren’t given any due process before they were removed from the United States and weren’t told where they were being sent. They also weren’t given the opportunity to dispute whether they were involved with the gang, she said.

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The last time the United States used the 1798 law was during World War II, Millett said, adding that Nazis were able to make their case against removal from the United States to a hearing board.

In this case, “people weren’t given notice” or provided a chance to contest their removal, a situation that was stopped only by a federal judge’s emergency order on March 15, Millett said.

“There were planeloads of people. There were no procedures in place to notify people,” Millett said. “Nazis got better treatment under the Alien Enemy Act.”

Millett agreed with Ensign that the wartime law is constitutional but questioned how it was implemented — asking whether, in the absence of due process, she could be labeled a gang member and deported without a hearing.

Ensign said that “nothing of the sort is in the record here.” Pressed later by Millett about whether people alleged to be gang members would continue to be deported without hearings if the appeals court lifted a lower court’s temporary halt on the deportations, Ensign acknowledged they would.

Another of the judges on the panel, Justin Walker, appeared more skeptical of the plaintiffs’ claims.

Walker, who was appointed to the bench during the first Trump administration, asked American Civil Liberties Union attorney Lee Gelernt multiple questions about why the case was brought in Washington, D.C., instead of Texas, where the deportees were being held. Gelernt said the plaintiffs are seeking to stop people from being deported, not to release them from U.S. custody.

The third judge on panel, George H.W. Bush appointee Karen Henderson, didn’t ask any substantive questions.

The appeals court didn’t immediately rule on the administration’s request to lift U.S. District Judge James Boasberg’s order that halted deportations under the Alien Enemies Act.

Boasberg denied the administration’s bid to lift his hold earlier in the day and found that the Venezuelan nationals the administration wants to deport should most likely be given the opportunity to challenge allegations that they’re members of the Tren de Aragua gang first.

Trump has repeatedly attacked Boasberg over his emergency order temporarily halting deportations stemming from Trump’s invocation of the law, which had been used before only during declared wars. Trump has said in posts on his social media platform that Boasberg “is doing everything in his power to usurp the Power of the Presidency” and “doesn’t mind if criminals come into our Country.”

Boasberg didn’t mention the Trump posts in his ruling Monday but did note that his ruling blocked deportations only under the AEA and doesn’t bar people from being detained under the act or deported under other authorities.

“It is important to stress once again that the Order was narrow: it prevented Defendants only from removing the Plaintiff class on the sole basis of the Proclamation. In other words, the Order did not prevent Defendants from removing anyone — to include members of the class — through other immigration authorities,” he wrote, adding that member of Tren de Aragua are deportable under other statutes since Trump designated the gang a foreign terrorist organization.

“The Order also did not require Defendants to release a single person held in their custody, even individuals held only on the basis of the Proclamation,” Boasberg added. “And it did not even prevent Defendants from apprehending noncitizens under the authority of the Proclamation (or any other law, for that matter).”

What his order did limit was deporting people alleged to be gang members to a notoriously dangerous El Salvador prison without allowing them to contest that they’re involved with the gang, as the five plaintiffs in the case have done.

Boasberg suggested the government had acted in bad faith to avoid such hearings. He noted two planes carrying deportees took off on March 15, even though the administration knew about the emergency hearing on the issue before him and called it “a move that implied a desire to circumvent judicial review.”

The administration “knew as of 10:00 a.m. on March 15 that the Court would hold a hearing later that day, and the most reasonable inference is that it hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the Government now acknowledges they are entitled,” he wrote.

Boasberg said he’d asked the Justice Department at during the 5 p.m. hearing whether any such flights were underway and was told by a Justice Department attorney that he didn’t know. Boasberg then took a recess to allow the lawyer to check.

“When the hearing resumed shortly after 6:00 p.m., the Government surprisingly represented that it still had no flight details to share,” he said.

He has since repeatedly demanded that the government give him information about on the timing of the flights — which it has yet to do, arguing he’s not entitled to the information.

In his ruling Monday, Boasberg denied the government’s motion to vacate his order, citing the “irreparable harm” that could be caused by sending non-gang members to El Salvador.

“In Salvadoran prisons, deportees are reportedly ‘highly likely to face immediate and intentional life-threatening harm at the hands of state actors,'” he wrote, and the deportees face horrific living conditions and the “likelihood of potential torture.”

The plaintiffs claim that “many” of the deportees on the two flights weren’t affiliated with the gang, which the administration denies.

“As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, ‘alien enemies,'” Boasberg wrote.

“Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” he added. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”

They “are entitled to individualized hearings to determine whether the Act applies to them at all,” he wrote.

Gary Grumbach reported from Washington and Dareh Gregorian from New York City.