A federal judge in New York rebuked President Donald Trump’s use of the Alien Enemies Act to deport alleged migrant gang members without due process, comparing it to a medieval inquisition.
U.S. District Judge Alvin Hellerstein, at a hearing Tuesday, temporarily extended his April 9 order in which he temporarily blocked detained migrants being held in the Southern District of New York from being deported without due process.
The Trump administration last month touched off a legal battle when it invoked the Alien Enemies Act — an 18th century wartime authority used to remove noncitizens with little-to-no due process — to deport two planeloads of alleged migrant gang members to the CECOT mega-prison in El Salvador by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States.
An official with the U.S. Immigration and Customs Enforcement acknowledged that “many” of the men deported on March 15 lack criminal records in the United States — but said that “the lack of specific information about each individual actually highlights the risk they pose.” Authorities have said they have used migrants’ tattoo markings as one of the factors identifying them as gang members.
“This is the United States of America,” Hellerstein said Tuesday. “People are being thrown out of the country because of their tattoos.”
The judge also blasted a DOJ lawyer for suggesting due process is a “flexible standard.”
“The law is clear: If you are kicking out a person, you give them an opportunity to defend themselves,” the judge said. “You can’t kick someone out by guilt by association.”
While Judge Hellerstein reserved his decision about potentially issuing a preliminary injunction to block some removals, he noted that he sees “serious problems” with Trump’s recent use of the AEA, including the practice of sending migrants to El Salvador where they could face inhumane conditions.
“This proclamation is contrary to the law,” he said.
The relief Hellerstein granted is limited to approximately a dozen migrants currently detained in a few New York counties.
In Colorado, meanwhile, U.S. District Judge Charlotte Sweeney issued a temporary order Tuesday that prohibits the administration from using the law to deport noncitizens currently within that state, further requiring that noncitizens subject to the AEA removal receive at least three weeks’ notice before deportation..
Judge Sweeney, in her order, criticized the Trump administration for attempting to remove two men in a manner she said is “deficient and fails to comport with due process.” According to the judge, the notices used by the Trump administration did not provide the men a reasonable amount of time to act on their due process and were only provided in English.
“The Court has grave concerns that Petitioners would be afforded notice that comports with due process to challenge the determination,” she wrote.
The judge also cast doubt on the legitimacy of Trump’s proclamation invoking the use of the Alien Enemies Act, writing that the plaintiffs were likely to prove that the proclamation violates Immigration and Nationality Act and humanitarian protections.
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