A US federal judge in Pennsylvania ruled on Tuesday that President Donald Trump and his administration may use the Alien Enemies Act of 1798 (AEA) to deport Venezuelan citizens accused of gang membership as long as the government offers “sufficient notice and due process.” Judge Stephanie Haines ruled that the government must give “greater notice” to individuals who are subject to deportation under the AEA.
The petitioner in this case is a Venezuelan citizen currently in immigration detention who seeks a preliminary injunction regarding Trump’s proclamation from mid-March. In that proclamation, Trump declared Tren de Aragua a foreign terrorist organization and authorized the use of the AEA to deport Venezuelan citizens with alleged membership.
The petitioner requested an injunction, asking the court to find that Trump’s proclamation violates the AEA and that the current due process provided is insufficient for those detained under the proclamation. Haines granted the preliminary injunction in part and denied it in part. She denied the injunction in part because she found that presidents can issue a proclamation under the AEA to remove alien members of foreign terrorist organizations, but granted it in part because the Trump administration is not providing sufficient notice to those subject to removal.
In her analysis of the merits of the petitioner’s claim for a preliminary injunction, Haines first considered whether the proclamation meets the criteria of a “predatory incursion” as found in the AEA. She rejected the respondents’ interpretation of the phrase by relying on the plain language meanings in dictionary definitions, finding that “migration alone” does not amount to a “predatory incursion.” Haines also rejected the petitioner’s definition of “predatory incursion.” She reasoned that a designated foreign terrorist organization is the “very definition” of an incursion when considering the AEA in “light of modern developments.” As such, when applying her definition to Trump’s proclamation, she found that it is compliant with the AEA and thus the petitioner did not show a likelihood of success on this issue.
Haines then discussed the issue of whether the respondents’ current notice is sufficient and whether the petitioner’s request for an injunction should be granted on this issue. She considered how much notice is required “absent class certification” and found that 21 days’ notice and an “opportunity to be heard” is sufficient. She further determined that the petitioner’s request should be granted on the issue of notice because he has shown a likelihood of irreparable harm and there is a “significant risk” that he could be deprived of his rights.
The court previously allowed a temporary restraining order in this case, which enjoined the respondents, Trump and his administration, from removing the petitioner from the US. In late April, the court issued a memorandum order certifying a class. However, in a separate opinion and order, Haines has found that the requirements for a class action are not met, particularly the numerosity requirement, since there are no individuals detained in the Western District of Pennsylvania at risk of deportation per the proclamation. Therefore, this case is a single-petitioner habeas case.
Last week, two federal judges across the US granted preliminary injunctions in favor of the petitioners, which prevents Trump and his administration from using the proclamation for deportation against the petitioners and members of their class in New York and Colorado. In these cases, a final decision has yet to be handed down.
