Washington: A U.S. appeals court judge asserted on Monday that Nazis received more rights to contest their removal from the United States during World War II than Venezuelan migrants deported under the Trump administration.
During a contentious hearing, U.S. Circuit Judge Patricia Millett questioned government lawyer Drew Ensign about whether Venezuelans deported under a rarely used 18th-century law had the opportunity to dispute the Trump administration’s claim that they were members of the Tren de Aragua gang before being put on flights to El Salvador.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” Millett stated. Ensign responded, “We certainly dispute the Nazi analogy.”
The 1798 Alien Enemies Act, which the Trump administration invoked, has been used only three times in U.S. history, most recently during World War II to intern and expel Japanese, German, and Italian immigrants.
Legal Battle Over Deportations
The Trump administration is appealing a ruling by Washington-based U.S. District Judge James Boasberg, who issued a two-week ban on March 15, halting the use of the Alien Enemies Act to deport alleged Tren de Aragua members without final removal orders from immigration judges.
Family members of deported Venezuelan migrants deny any gang affiliations. Lawyers for one deportee, a Venezuelan professional soccer player and youth coach, argued that U.S. officials misidentified him as a gang member based on a tattoo of a crown, which he said represented his favorite team, Real Madrid.
Millett, an appointee of former President Barack Obama, is part of a three-judge panel from the U.S. Court of Appeals for the D.C. Circuit reviewing the government’s challenge to Boasberg’s order. The panel also includes U.S. Circuit Judge Justin Walker, appointed by former President Donald Trump, who appeared more sympathetic to the administration’s position. The third judge, Karen Henderson, was appointed by former President George H.W. Bush. The court has not indicated when it will issue a ruling.
Trump’s Executive Power at Stake
The case has become a significant test of Trump’s broad assertion of executive authority. With a Republican-controlled Congress largely backing his policies, federal courts have often been the primary check on Trump’s executive actions.
In a Monday court filing, government lawyers informed Boasberg that they would not disclose further details about the deportation flights, citing the state secrets privilege—a legal doctrine allowing the government to withhold information that could compromise national security.
Following Boasberg’s ruling, Trump called for the judge’s impeachment. In response, U.S. Supreme Court Chief Justice John Roberts issued a rare statement rebuking Trump, emphasizing that judicial decisions should be challenged through appeals rather than impeachment.
Concerns Over Due Process
Trump has argued that the judiciary, not his administration, is overreaching. During Monday’s hearing, Ensign urged the appeals court to pause Boasberg’s order, contending that the judge had no authority to challenge the president’s decisions on foreign affairs.
U.S. Circuit Judge Walker questioned Lee Gelernt, an attorney from the American Civil Liberties Union (ACLU) representing some Venezuelan migrants, about historical cases where courts have restricted presidential national security actions.
Gelernt countered that ensuring due process does not compromise national security.
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Boasberg, in a 37-page ruling on Monday, denied the Trump administration’s request to lift the two-week ban, stating that individuals must be given the chance to contest their alleged gang affiliation before deportation. He is also reviewing whether the Trump administration violated his order by failing to return deportation flights after the ruling was issued.
Boasberg wrote that the administration appeared to have “hustled people onto those planes” to preempt a potential court ruling blocking the deportations.
Deportation to El Salvador
On March 15, the Trump administration deported over 200 people to El Salvador, where they are now detained in the country’s massive anti-terrorism prison under a U.S. agreement to pay President Nayib Bukele’s government $6 million.
Boasberg’s ruling applies to five plaintiffs represented by the ACLU as well as other Venezuelans in the U.S. who may be subject to removal under the Alien Enemies Act. However, the ruling does not address migrants currently held in El Salvador.
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In a Monday filing, the ACLU urged Boasberg to require the return of the deported migrants if it is determined that their removal violated his order. The ACLU noted that among those deported were eight Venezuelan women and a Nicaraguan man, who were initially sent to El Salvador but later rejected by the government and returned to the U.S.
One of the Venezuelan women, in a sworn declaration, stated that while aboard the deportation flight, she overheard a U.S. official discussing an order that allegedly prohibited the plane from taking off.
