This month, the Supreme Court ordered that Venezuelans threatened with deportation under an 18th-century wartime law be given a measure of due process — a chance to challenge their removal from the country in court.
On Thursday, a declaration by an immigration official that laid out the Trump administration’s process for complying was unsealed.
According to the official, detainees would be told of their impending removal in notices written in English and then would get one phone call and at least 12 hours to indicate that they wished to challenge their deportation. But if they did not file in court within 24 hours after giving notice, according to the declaration, they could be sent out of the country — including to a notorious terrorism prison in El Salvador.
The disclosure caused legal experts to react with astonishment and predict that judges, potentially including the Supreme Court justices, would most likely look askance.
“The administration’s notion of due process is a joke,” said Michael J. Klarman, a law professor and historian at Harvard. “I cannot imagine any non-MAGA judge taking the argument seriously.”
Mr. Klarman noted that the Supreme Court had previously defined due process requirements. In Goldberg v. Kelly, decided in 1970, the justices found that before revoking a person’s welfare benefits, the government must provide notice of the reason and a hearing where the person could present evidence and contest the termination.
“Remember that there we were dealing with the termination of welfare benefits, and here we are dealing with the right not to be interned in a gulag in El Salvador,” Mr. Klarman said.
Among the problems Mr. Klarman and others outlined with the government’s procedure: Many Spanish-speaking detainees may not understand the English-language notices; they may not be able to secure a lawyer with a single phone call or in such a limited time; there is no indication that the clock for challenging deportation is paused overnight or outside business hours; and even if a detainee finds a lawyer, the attorney may not be able to examine the case and properly prepare a legal challenge in time.
The decision by a federal judge in Texas to unseal the declaration is the latest move in the administration’s push to deport hundreds of Venezuelan migrants it claims are members of Tren de Aragua, a violent gang. It comes as the Supreme Court is again considering an emergency application asking it to halt the Trump administration’s use of the wartime law to conduct deportations. A ruling could arrive any time. Cases are also pending in federal courthouses around country, brought by detainees who believe they could be deported under the act.
In mid-March, the president first proclaimed he would use the law, the Alien Enemies Act of 1798, to deport gang members. The act grants the president broad authority to arrest and remove from the United States citizens of foreign countries whom he defines as “alien enemies” in cases of war, invasion or “predatory incursion.”
The administration then sent planeloads of Venezuelan migrants to El Salvador, where they are being held in a prison built for terrorists.
The Supreme Court weighed in on the case in early April, clearing the way for deportations but making clear that the justices unanimously agreed that migrants be given notice “within a reasonable time and in such a manner” that allowed them a chance to challenge their removal.
Last week, after lawyers for the American Civil Liberties Union received information that Venezuelans at a Texas detention center had received deportation notices, they filed a flurry of legal challenges, including to the Supreme Court. In a rare overnight ruling, the justices paused the deportations while they considered the case.
Lee Gelernt, the lead A.C.L.U. lawyer in the case, criticized the Trump administration’s decision to file the notice procedure under seal.
He said the process for removing the migrants “should not be a secret, unless the administration is actively trying to keep lawyers and detainees from understanding the process.”
The A.C.L.U. had filed a motion with the Supreme Court alerting the justices to the sealed declaration, and the group may use it as evidence in cases challenging the deportations.
Brandon L. Garrett, a law professor at Duke and the author of “Defending Due Process,” said the government’s removal procedures gave migrants fewer ways to challenge their deportation than people were given in other types of legal matters.
“I can’t imagine anyone tolerating a system where, if a person does not pay a traffic ticket in 12 hours, they would just lose their driver’s license permanently,” Mr. Garrett said. “Or if a person is arrested, and does not get a lawyer in 12 hours, they are just automatically convicted and sent to prison without a trial.”
He added that the limited process could also give rise to “costly errors.”
“Unfair process tends to create all sorts of expensive problems that multiply over time, in addition to being very unfair, and of course also unconstitutional,” Mr. Garrett said.
President Trump has expressed skepticism about allowing the people accused of entering the country illegally to bring court challenges.
“We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years,” he wrote on social media on Monday.
Cliff Sloan, a law professor at Georgetown, said he thought the administration’s treatment of the Venezuelan migrants would be remembered alongside other “deep stains in our constitutional history.”
Mr. Sloan, who served as President Barack Obama’s special envoy on Guantánamo Bay and is the author of “The Court at War: F.D.R., His Justices and the World They Made,” analogized the situation to the denial of due process to Japanese Americans and Japanese noncitizens during World War II and to war on terrorism detainees imprisoned at a U.S. facility at Guantánamo.
“The government’s current position, with these completely unrealistic and inadequate deadlines, is sham due process, and they must know it,” Mr. Sloan said.
A federal appeals court judge hearing one of the legal challenges to the deportations also drew parallels to previous invocations of the wartime law.
During an oral argument, Judge Patricia A. Millett said the Venezuelan migrants had received less notice of their removal than World War II-era German nationals who were given 30 days to contest their deportations.
“Nazis got better treatment under the Alien Enemies Act,” Judge Millett said.
Adam Liptak and Alan Feuer contributed reporting.
Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting.
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