An Obama-appointed judge on a Washington, D.C., appeals court Monday brought up the U.S. government’s treatment of Nazis amid World War II under the Alien Enemies Act in a hearing about President Donald Trump’s deportation of alleged Venezuelan gang members.
Judge Patricia Millett, in noting the Trump administration’s process for removing alleged members of the gang Tren de Aragua, drew a negative comparison with the Nazi precedent.
“There were planeloads of people. There were no procedures in place to notify people,” Millett, whom President Barack Obama appointed to the court, noted. “Nazis got better treatment under the Alien Enemy Act than has happened here.” She noted “they had hearing boards before people were removed.”
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“Yet here, there is nothing about hearing boards. There is no regulation, and nothing is adopted by the agency officials administering this,” the judge continued. “They weren’t told where they were going. Those people on those planes Saturday had no opportunity to file habeas [corpus] or any type of action to challenge the removal.”
Deputy Attorney General Drew Ensign answered, “We dispute the Nazi analogy.”
“But more importantly, the fact is that individual plaintiffs were able to file habeas in time in order to secure relief, the five individual plaintiffs,” Ensign said.
The Trump administration had asked the U.S. Circuit of Appeals in the District of Columbia to reverse U.S. District Judge James Boasberg’s ruling blocking the deportation of alleged members of the Tren de Aragua criminal gang.
“The district court’s order represents an unprecedented and enormous intrusion on the powers of the executive branch,” Ensign argued.
“It enjoins the president’s exercise of his war and foreign affair powers under the Alien Enemies Act and does so in a matter that purports to direct operations outside the United States borders and in a manner that could intrude on sensitive diplomatic negotiations,” he continued.
Tren de Aragua is a Venezuelan gang, which the Trump administration designated as a terrorist organization. The 1798 Alien Enemies Act allows a president to fast-track the removals under national security concerns.
Previously, Boasberg, also an Obama appointee, issued a restraining order against Trump’s use of the Alien Enemies Act of 1789 to deport illegal immigrants believed to be part of Tren de Aragua.
However, the alleged gang members were already in international air space when the judge issued his written ruling, on the way to detention in El Salvador.
“The district court’s order is therefore appealable, much as a TRO directing the president to redeploy a carrier group from the South China Sea to the Persian Gulf,” Ensign added.
Trump has called for Boasberg to be impeached.
The Trump administration argued the case before Millett; Judge Karen Henderson, a George H.W. Bush appointee; and Judge Justin Walker, a Trump appointee.
The Trump administration has asked for a speedy decision, as the case is likely to ultimately be determined by the Supreme Court.
Lee Gelernt, a lawyer for the American Civil Liberties Union, which argued on behalf of the detained individuals, argued there is no proof those deported belonged to the criminal gang.
“We are looking at people who could be in Salvadoran prisons for the rest of their lives,” Gelernt said.
“The degree to which the government says you can have due process, that’s illusory. People were designated [Tren de Aragua] without any advance notice, rushed to planes,” he said.
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