Boasberg Orders Trump Admin to Bring TdA Members Back to Contest Removal
We have another ruling in the case involving Venezuelan nationals identified as members of Tren de Aragua and removed from the U.S. to El Salvador in March pursuant to a proclamation signed by President Trump, which invoked the Alien Enemies Act. Monday afternoon, Judge James Boasberg entered an order granting summary judgment to the plaintiffs in the case styled J.G.G. v. Trump. Boasberg also granted the plaintiffs' motion for class certification and denied the Trump administration's motion for summary judgment.
This case has a rather tortured procedural history, which Boasberg lays out in his memorandum opinion accompanying the order, but which I'm going to sum up thusly: In mid-March, the administration removed 252 Venezuelan men from the U.S., flying them to El Salvador, where they were then imprisoned at the Terrorism Confinement Center (CECOT). Though the men have since been released to Venezuela (in July), some of them are contesting their initial removal from the U.S., asserting that their being removed without a hearing violated their constitutional right to due process.
Boasberg agrees, and in his 43-page opinion sets forth the basis for his decision, which, again, I'm going to attempt to nutshell here:
- Boasberg determines that he has subject matter jurisdiction over the case because the U.S. maintained constructive custody of the plaintiffs while they were held at CECOT (and thus, at the time they filed their amended complaint).
- Plaintiffs' claims are not moot, even though they are now back in their home country, because even though they are no longer detained, they remain subject to other consequences from being designated as TdA members, including being barred from entry into the United States, being barred from residing in the U.S., and being subject to property seizure and forfeiture.
The merits of Plaintiffs’ due-process claim are easily resolved. Even if the AEA was properly invoked as a general matter, it is beyond cavil that designated “alien enemies” under that act must be afforded some process to contest their designation. Here, Plaintiffs received none. They were not told of their designation or informed that they could challenge it before being loaded onto planes and shipped out of the United States mere hours after Proclamation 10903 was made public. The Supreme Court has unequivocally affirmed that in circumstances like these, “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” Other courts have consistently required that detainees receive an opportunity spanning days — not hours — to file a habeas petition challenging their designation before deportation. By any measure, the detainees surely fell victim to constitutionally inadequate process.
As a remedy for this, Boasberg orders the administration to facilitate the plaintiffs' return to the U.S. to provide them "a meaningful opportunity" to contest their designation as TdA members and the proclamation’s validity. Alternatively, he concedes, "The Government could also theoretically offer Plaintiffs a hearing without returning them to the United States so long as such hearing satisfied the requirements of due process."
Boasberg ordered the administration to submit its proposal articulating the steps it will take to facilitate the plaintiffs' return (or theoretical hearing from afar) within two weeks.
No word yet as to how the administration intends to respond, but given the history of this case, I expect there will be an appeal. We'll continue to follow it and provide updates as warranted.
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