The Pennsylvania judge became the first in the United States to uphold the use of the act.
On Tuesday, a federal judge in Johnstown, Pennsylvania ruled that the government may remove Venezuelan citizens thought to be members of a violent gang under the Alien Enemies Act.
The judge ruled that the Alien Enemies Act may be used to deport the illegal aliens, but only if they are given 21-days’ notice and “an opportunity to be heard.”
U.S. District Judge Stephanie Haines, a Trump appointee, is the first judge in the United States to find that the gang Tren de Aragua has launched a “predatory incursion” in the country, as defined by the Alien Enemies Act.
The ruling has been met with challenges. Lee Gelernt, deputy director of the American Civil LIberties Union’s Immigrants’ Rights Project, said in a recent interview, “We intend to appeal the decision because the Alien Enemies Act is a wartime authority that was not intended to cover migration or ordinary criminal activity.”
On February 26th, a man identified by the initials A.S.R. was arrested when a neighbor reported that he was a gang member. Haines’ ruling came out of a case where A.S.R., a Venezuelan man, is trying to prevent the government from deporting him.
Also in February, the violent Venezuelan gang Tren de Aragua was designated a Foreign Terrorist Organization by the United States.
President Trump said the gang’s members had infiltrated the United States and were conducting “irregular warfare”.
The presidential proclamation that invoked the Alien Enemies Act allows the government to apprehend and remove all Venezuelan citizens aged 14 and older that are members of the gang.
A.S.R.’s attorneys sought a preliminary injunction asking that the government be prohibited from removing him, and that the court declare the president’s proclamation does not comply with the Alien Enemies Act.
At a hearing on May 5th, A.S.R.’s attorneys argued that the Alien Enemies Act had only been used in wartime, and that it may only be invoked during a declaration of war or in the event of a military invasion or predatory incursion.
In her opinion, Haines wrote that the proclamation meets the definition of a “predatory incursion”. She cited Tren de Aragua’s status as a Foreign Terrorist Organization to support her ruling.
Haines agreed with A.S.R.’s attorneys that the 12- or 24-hour notice the government provides to detainees subject to deportation under the Alien Enemies Act is insufficient.
Her order requires the government to instead provide 21-days notice and an “opportunity to be heard”.
She wrote that it is well-established that aliens are entitled to due process in deportation proceedings, which the Supreme Court reiterated in an April decision. The April decision ruled that it applies even to those subject to removal through the Alien Enemies Act.
Haines wrote that individuals in the custody of Immigration and Customs Enforcement are frequently moved and have a difficult time communicating with their attorneys.
In her opinion’s conclusion, Haines wrote that her obligation is “to apply the law as written.”
