As most readers here are probably aware, a legal firestorm has erupted over the past 72 hours involving interference by a federal district court judge in efforts by the Trump Administration to remove members of the violent Venezuela gang Tren de Aragua (TdA) from the United States to a third country while negotiating for their return to Venezuela. Agreements were reached with Honduras and El Salvador to house the gang members in their detention facilities while the United States deals with the Maduro regime in Venezuela to send them back.  

Late on Saturday afternoon, two planes with more than 200 gang members from El Salvador (MS-13) and Venezuela (TdA) departed from Texas to deliver the passengers to Honduras and El Salvador. While those two flights were en route, the Chief Judge of the U.S. District Court for the District of Columbia issued a temporary restraining order (TRO) directing that the planes be turned around and the passengers brought back to the United States while a lawsuit over the legality of their removal was litigated in his court. Initially, Judge James Boasberg issued a TRO preventing the removal of only the five named defendants. As set forth below, he later expanded that TRO to cover potentially thousands of gang members in the country illegally that the Trump administration wants to remove without going through the time-consuming process of putting them through normal immigration deportation proceedings.

Read More: Activist Nation: Judge Orders Plane Carrying Gangsters Kicked Out by Trump to Turn Around

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The removal was based on President Trump’s invocation of the Alien Enemies Act of 1798, which happened on Saturday, March 15, with the issuance of a proclamation declaring members of TdA to be “alien enemies” of the United States.  

A civil complaint had been filed earlier in the day on behalf of five individuals, identified only by their initials, in anticipation of the actions that would be taken by President Trump. All are said to be citizens of Venezuela. The complaint has many allegations about what was expected to be in a then-not-yet-released proclamation invoking the Alien Enemies Act. It states that the AEA has only been invoked in a time of war — three times in 230 years and “plainly” only applies to “war-like” actions. It claims Venezuela has not “invaded” the U.S. or engaged in a “predatory invasion,” which are the bases identified in the statute when no declared war has taken place.  

The complaint describes the five plaintiffs — all of whom deny being TdA members — coming to the United States as “arrivals” of “Venezuelans” — like they came in through Ellis Island. In the declarations filed in support of a motion for a TRO, each of the five plaintiffs states they have filed asylum petitions. Each of them claims that they have fear of being returned to Venezuela, and one aspect of their fear is that they have a fear of TdA and have been or likely will be victimized by TdA. All five individuals named in the complaint state in their declarations that their asylum applications remain pending. 

One ground for denying an asylum application is a finding that there are reasonable grounds to believe the individual poses a danger to U.S. security. Although it doesn’t follow the statutory procedures governing asylum claims, it is arguable that the proclamation about TdA members makes the asylum applicant subject to removal with an implied finding that the individual “poses a danger to U.S. security” that flows from the fact that the proclamation declares TdA members as “alien enemies.” 

The complaint alleges that any alien who falls under the terms of an AEA proclamation must be given a period of time to voluntarily depart the United States, and the five plaintiffs were not given such an opportunity. While there is language in the AEA that refers to a person covered by a proclamation “refusing or neglecting to depart,” the AEA also states that upon issuance of a proclamation, all persons covered by its terms “shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” 

Another statute that is part of the AEA — 50 U.S.C. Sec. 22 — does provide for persons subject to a proclamation to be given “full time” to depart after winding up their affairs. But this provision is limited to individuals not engaged in “actual hostility, or other crime against the public safety….” The proclamation includes an express finding by President Trump that members of TdA are not eligible for the status provided by Sec. 22. 

The complaint next alleges the passage of the Immigration & Nationality Act of 1952 created a statutory framework for removal of aliens that is now the “sole and exclusive procedure” to determine whether an individual should be removed. I noted this in an X post a couple of days ago, and a commentator on the post noted — correctly — that the language of 8 U.S.C. Sec. 1129a(a)(3) is slightly different than as it was paraphrased in the complaint. What it actually says is as follows: 

“Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.”

So the “removal” proceedings starting with 8 U.S.C. Sec. 1229 only apply to aliens “admitted” and not aliens in the country illegally. We don’t “admit” aliens unlawfully. 

The complaint next states, “The INA’s 'exclusive procedure' and statutory protections apply to any removal of a noncitizen from the United States, including removals authorized by the AEA.” But, as noted above, that’s not true because the AEA proclamation issued by President Trump excludes Venezuelan citizens in the United States with a visa or permanent resident alien status. The removal proceedings in Sec. 1229 would apply to those aliens — they are not within the scope of the AEA proclamation. None of the five plaintiffs are lawfully in the U.S.

This all leads to the decision by Judge Boasberg to expand his initial TRO from just the five named plaintiffs to a “putative class” that will include all TdA members subject to the AEA proclamation and the effect of that fateful decision. 

When a federal judge is presented with a newly filed complaint and a motion for a restraining order supported by affidavits or declarations filed in support thereof, as a general proposition, the judge accepts the truthfulness of the allegations set forth therein. Such motions always end up being decided on less-than-perfect information, and a TRO is only temporary — lasting only until a more comprehensive hearing can be held and more evidence placed into the record. Sometimes, this includes live witness testimony. It is not unusual for a TRO to be granted based on representations of just the plaintiff(s) without the defense being involved — uncommon but still allowed. 

Judge Boasberg entered his initial TRO covering only the five named plaintiffs on Saturday morning. The AEA Proclamation had not yet been issued by President Trump, so there was no “class” of other persons to be recognized. 

He expanded his TRO after the two hearings on Saturday night. His written order following those hearings was entered at 7:25 p.m. The government had not had any opportunity through the course of the day to file any written opposition to the motion for a TRO or the motion for class certification, both of which were filed on Saturday by the plaintiffs after the filing of the complaint. At the hearing, Judge Boasberg asked questions of both sides, but many of the answers were “I don’t know,” and not much specific information was before Judge Boasberg other than that contained in the written filings. 

In my opinion, Judge Boasberg was ill-advised to address the motion for class certification on the limited record he had before him. All he had were the allegations of an unverified complaint — meaning it wasn’t sworn to — and the self-serving affidavits of the five named plaintiffs. As noted, the government was afforded no opportunity to file a written opposition to the motion, but Judge Boasberg said multiple times that he was going to need some of the issues briefed by the two parties. The extent of the government’s opposition was the argument it made during the Saturday evening hearing.

Reaching the class certification was crucial to the plaintiffs as it was the only basis that would allow Judge Boasberg to expand his TRO out from the five plaintiffs named in the complaint. By certifying the class, Judge Boasberg was able to then claim jurisdiction over all members of the class, and after doing that, he extended his TRO from just the five named plaintiffs to all putative class members — meaning anyone covered by the proclamation.

He did this because the government had disclosed at the start of the 6:00 p.m. session that the two planes carrying hundreds of TdA members had left the United States and were headed for El Salvador and Honduras. If Judge Boasberg had not certified the class — and then expanded the TRO — the TdA members on the planes would end up in the custody of a foreign government and beyond his jurisdiction. He certified the class not because it was the right thing to do procedurally or under the law — the government wasn’t given a chance to make a meaningful argument against doing so — he did so because it was the mechanism available to expand his TRO and order that the planes be turned around and the persons on board brought back to the United States. 

As has been widely publicized, the planes did not turn around. They reached their destination and turned the gang members over to the governments of Honduras and El Salvador. 

That led to a hearing on Monday on the question of whether the Trump administration had intentionally violated the court’s TRO by not directing the planes to turn around and return the passengers to Texas. Judge Boasberg said at the outset of the hearing that he was not intending to reach any decisions or enter any rulings. The purpose of the hearing was to gather information from the government about the sequence of events on Saturday night and why the planes did not turn around and bring the passengers back. 

But through the course of the exchanges with the DOJ attorney, it became clear the Trump administration wasn’t going to provide him the information he was asking for. One reason was that it was an open hearing, and the administration was not prepared to disclose details about sensitive matters that were the result of negotiations with foreign governments. Another reason was that the information had security considerations with regard to the details of what had taken place. The judge asked if the information was formally “classified”? If so, why could he not receive that information in a closed session as he does in other matters? If the material was not “classified,” yet the administration continued to be unwilling to share it, he asked for the legal basis upon which such a refusal was based.

Assuming there was some circumstance under which the administration would provide the information, he had a series of questions about the sequence of events on Saturday for which he wanted answers. 

The DOJ attorney repeatedly made references not only to the discretion given to the president by the AEA and the fact that decisions made by the president under the AEA are “non-justiciable” — not subject to court review — but also that the activities of Saturday night fell within the Article II powers of the president with regard to military activities and foreign affairs. The administration advanced this as a separate justification for the actions taken as well as a barrier to inquiry by the court regardless of the TRO. 

This last argument takes the dispute down the path of the famous Supreme Court decision in Youngstown Sheet & Tube v. Sawyer concerning the “separation of powers” in wartime. 

But that subject will have to await another article. 

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