In what can be understood only as covert preparation to skirt both the requirements of the Act and the Constitution’s guarantee of due process, the Department of Homeland Security (DHS) began moving Venezuelan migrants from Immigration and Customs Enforcement detention centers across the country to the El Valle Detention Facility in South Texas before the President had even signed the Proclamation. The transferred detainees, most of whom denied past or present affiliation with any gang, did not know the reason for their transfer until the evening of Friday, March 14, when they were apparently “pulled from their cells and told that they would be deported the next day to an unknown destination.”
Suspecting that the President had covertly signed a Proclamation invoking the Alien Enemies Act, several lawyers anticipated their clients’ imminent deportation and filed a putative class action in the District of Columbia. They contested that Tren de Aragua had committed or attempted the kind of “ ‘invasion’ ” or “ ‘predatory incursion’ ” required to invoke the Alien Enemies Act. They also asserted that it would violate the Due Process Clause to deport their clients before they had any chance to challenge the Government’s allegations of gang membership.
In the early morning of March 15, the District Court informed the Government of the lawsuit and scheduled an emergency hearing. Despite knowing of plaintiffs’ claim that it would be unlawful to remove them under the Proclamation, the Government ushered the named plaintiffs onto planes along with dozens of other detainees, all without any opportunity to contact their lawyers, much less notice or opportunity to be heard.
The Government’s plan, it appeared, was to rush plaintiffs out of the country before a court could decide whether the President’s invocation of the Alien Enemies Act was
lawful or whether these individuals were, in fact, members of Tren de Aragua.
Recognizing the emergency the Government had created by deporting plaintiffs without due process, the District Court issued a temporary restraining order that same morning.
The court then set an emergency hearing for 5 p.m. that same day, at which it planned to consider plaintiffs’ claim that temporary relief should be extended to a class of all noncitizens subject to the anticipated Proclamation. Despite notice to the Government of the Court’s scheduled hearing, DHS continued to load up the two planes with detainees and scheduled their immediate departure. Not until an hour before the District Court’s scheduled hearing, and only moments before the Government planned to send its planes off to El Salvador, did the White House finally publish the Proclamation on its website.
apnews.com
