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Appeals court slams efforts to deport without due process

homesafetytechpros — Thu, 27 Mar 2025 04:04:46 +0000

President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).

A federal court of appeals has upheld a temporary restraining that bars the government from summarily deporting immigrants without due process by citing an obscure wartime law.

In a per curiam order, the U.S. Court of Appeals for the D.C. Circuit tersely rejected the Trump administration’s bid for an emergency stay of the temporary restraining order issued on March 15, by D.C. District Court Chief Judge James E. Boasberg, a jurist who got his start under George W. Bush and who was later promoted by Barack Obama.

Each of the three judges on the three-judge panel, however, wrote separately to explain their votes. Circuit Judges Patricia Millett, an another Obama appointee, and Karen L. Henderson, a George H.W. Bush appointee, wrote concurrences. Circuit Judge Justin R. Walker, who was appointed by President Donald Trump, penned a dissent.

In the case before the court, the Trump administration claimed something not entirely unlike plenary authority to quickly deport immigrants using the Alien Enemies Act (AEA) of 1789. The law, which has not been used since World War II, has hitherto been understood to apply only during an actual war with another country. Its use by the Trump administration to target suspected foreign gang members poses a matter of first impression for the judiciary at large.

The law in question reads, in relevant part:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

Henderson, for her part, believes in the historical understanding of how the law works through its conditional and operative clauses.

“Thus, the AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to the belligerent state,” the judge wrote. “A central limit to this power is the Act’s conditional clause—that the United States be at war or under invasion or predatory incursion.”

To hear the Trump administration tell it, however, the court’s authority to resolve AEA-related issues are beyond the scope of judicial review because they are so political in nature.

Henderson sharply rejected that claim – accusing the U.S. Department of Justice of misreading the U.S. Supreme Court precedent cited to make that un-reviewability argument.

“In no uncertain terms, the Court said the AEA ‘preclude[s] judicial review . . . [b]arring questions of interpretation and constitutionality,”” Henderson noted. “Questions of interpretation and constitutionality—the heartland of the judicial ken—are subject to judicial review.”

The judge also offered a new analysis of her own – in light of government claims that the word “invasion” in the statute applies to the current state of the U.S. immigration system because there are large numbers of “illegal” immigrants. This argument was also rejected.

“[T]he invasion must be ‘against the territory of the United States by any foreign nation or government,’” the judge observed. “The requirement that the ‘invasion’ be conducted by a nation-state and against the United States’ ‘territory’ supports that the Congress was using ‘invasion’ in a military sense of the term.”

The concurrence elaborates, at length:

This should come as no surprise. The term “invasion” was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense. For example, the Guarantee Clause provides that “[t]he United States shall . . . protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection).

In one small salve for the government, Henderson cited common law to suggest Boasberg might have to limit his temporary restraining order so that it does not apply to the president himself. Still, she said, the broader restraining order should stand for at least as long as the lower court fully briefs the issues.

“At this early stage, the government has yet to show a likelihood of success on the merits,” Henderson concluded. “The equities favor the plaintiffs.”

In her own concurrence, Millett also said the lower court was equipped to deal with the case on the merits at this stage – and chided the government for what appeared intentional efforts to remove the case from the court’s jurisdiction by its actions.

“The district court has been handling this matter with great expedition and circumspection, and its orders do nothing more than freeze the status quo until weighty and unprecedented legal issues can be addressed through a soon-forthcoming preliminary injunction proceeding,” Millett wrote. “There is neither jurisdiction nor reason for this court to interfere at this very preliminary stage or to allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court.”

Millett used especially strong language to take issue with the Trump administration’s interpretation of the AEA.

“[T]he government maintains that whether there has been an ‘invasion or predatory incursion’ of the United States and whether [the Venezuelan gang Tren de Agua] is a ‘foreign nation or government’ are committed to the President’s discretion,” the judge writes. “Not likely.”

Then judge then took a larger ax to the executive branch.

‘[T]he government is mistaken about the extent of unilateral Executive authority under the Constitution,” she goes on. “An assertion of exclusive Executive authority is ‘the least favorable of possible constitutional postures’ and it runs aground here on the express constitutional assignment of relevant authority to Congress.”

The government’s position in the AEA case also implicates fundamental constitutional rights; Millett says those issues have long since been decided and the government is wrong again here.

“Over one-hundred-and-fifty years ago, the Supreme Court addressed whether civilian courts could be closed just because the Executive declared an emergency,” the judge noted. “The Court said no.”

As for the basic claim advanced by the Trump administration, Millett rubbished the government for insisting the AEA could be used to deport people while at the same time suggesting anyone aggrieved by such a deportation could file a petition for a writ of habeas corpus.

“The government’s removal scheme denies Plaintiffs even a gossamer thread of due process, even though the government acknowledges their right to judicial review of their removability,” Millett concluded. “The district court’s temporary restraining orders have appropriately frozen the status quo until an imminent motion for preliminary injunction is filed. The district court acted well within its discretion in doing so. We lack jurisdiction to review the government’s motion to stay those orders, and the government’s jurisdictional objections to the district court’s actions do not raise a substantial question at this stage.”

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Columbia student sues Trump admin over possible deportation

homesafetytechpros — Tue, 25 Mar 2025 19:23:29 +0000

President Donald Trump listens as Secretary of State Marco Rubio speaks during a cabinet meeting at the White House in Washington, Monday, March 24, 2025 (Pool via AP).

A Columbia University student who is currently being chased down by the Trump administration has filed a lawsuit that aims to undercut the government’s ongoing search and apparent concomitant efforts to deport her.

Yunseo Chung is a lawful permanent resident who has lived in the United States since she was 7 years old, according to the complaint filed in the U.S. District Court for the Southern District of New York on Tuesday. Though technically a Korean national, the U.S. is “the only country she has ever known,” the 48-page lawsuit explains.

The 21-year-old junior has a 3.99 GPA and is highly engaged in various extracurricular activities, the lawsuit notes. Before that, Chung was her high school’s valedictorian. But the plaintiff’s academic achievements have seemingly been overshadowed by her participation in protests related to the Israel-Hamas war, the lawsuit says.

“Since 2023, along with hundreds of her peers, Ms. Chung has also participated in some student protests and demonstrations on Columbia University’s campus related to Israel’s military campaign in Gaza and the devastating toll it has taken on Palestinian civilians,” the lawsuit reads. “Ms. Chung has not made public statements to the press or otherwise assumed a high-profile role in these protests. She was, rather, one of a large group of college students raising, expressing, and discussing shared concerns.”

To hear Chung and her attorneys tell it, those low-profile rallying efforts have made her a marked woman in the Trump administration’s eyes — and, in turn, prompted government agents up and down the line to initiate a carbon copy of the process that resulted in fellow Columbia student Mahmoud Khalil’s administrative detention in a Louisiana lockup without charges.

On or around March 8, the Department of Homeland Security (DHS) and its offshoot Immigration and Customs Enforcement (ICE) “began a series of unlawful efforts to arrest, detain, and remove Ms. Chung from the country because of her protected speech,” the lawsuit says.

While Chung seems to have evaded detention so far, on March 10, one of her attorneys fielded law enforcement requests and took note of increasingly aggressive efforts to search for and detain her.

The lawsuit explains, at length:

AUSA [Perry] Carbone stated that the Secretary of State had revoked Ms. Chung’s visa. Attorney [Naz] Ahmad explained that Ms. Chung is a U.S. permanent resident, and that she is not present in the United States on a visa.

AUSA Carbone then stated that “the Secretary of State has revoked that,” too. Counsel for Ms. Chung offered that the Secretary of State does not have the unilateral authority to revoke permanent resident status. When Attorney Ahmad inquired further, AUSA Carbone could not explain the justification for the government’s purported action.

Later that same day, AUSA Carbone texted Attorney Ahmad a copy of an administrative arrest warrant naming Ms. Chung. The administrative arrest warrant did not specify under which provision of the immigration law Ms. Chung would be subject to deportation.

Her lawyers, on the other hand, say the warrants were based on “false pretenses” and meant to arrest her because of the viewpoint of her protest activities.

“The government’s retaliation against Ms. Chung comes in a broader context of retaliation against other noncitizens who have exercised their First Amendment rights,” the lawsuit reads. “Officials at the highest levels of the federal government have made clear that they intend to use immigration enforcement to punish noncitizens who speak out in support of Palestinians and Palestinian rights, or who are perceived to have engaged in such speech.”

In both formal and germane terms, however, the government is being intentionally evasive about the present case, the complaint alleges.

Neither Chung nor her attorneys have been provided with a specific reason for why the government wants to “presumably” send her to South Korea, according to the lawsuit. Nor, has she actually been presented with an “order of removal,” the lawsuit acknowledges.

Rather, Chung likens her experience so far to Khalil’s and anticipates she will likely, if caught, be subject to similar administrative detention based on a “pattern and practice” by the Trump administration “of targeting individuals associated with protests for Palestinian rights.”

More Law&Crime coverage: ‘Y’all could’ve picked me up’: Judge rips Trump admin over deportations without due process, says government could have ‘thrown me on a plane’

The lawsuit cites Khalil’s controversial case analogously and briefly explains that he eventually received an ICE-issued notice to appear which cites a section of federal law that says: “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”

Chung now believes she is being subjected to the same “foreign policy ground” and is moving to preempt the government’s would-be actions.

To that end, Chung’s complaint also contains a petition for a writ of habeas corpus — which serves to question the basic premise of the government’s actions in relation to protesters over the war.

The writ of habeas corpus is a 900-year-old legal protection afforded to persons against authoritarian impulses of law enforcement and government executives which allows an advocate to argue someone is being illegally confined, detained or imprisoned. It is generally considered the bedrock of the American and British legal systems.

More to the point, the writ also attempts to force the government to answer questions in court and fully account for its actions by forcing an administrative process — like ICE detention and deportation — into the more public light of a judicial process. In other words, the writ here is being sought to make sure the New York federal court retains authority over Chung’s case instead of ICE and an immigration judge.

Still, neither the plaintiff nor the government are actually confused.

While DHS and ICE have not formally issued a removal order for Chung’s deportation, they have issued a warrant. And, as the complaint notes, both President Donald Trump and Secretary of State Marco Rubio have promised that the administration “will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”

The lawsuit takes issue with the government’s interpretation of the law and notes that many opponents of the widespread protest movement “mischaracterize peaceful protest and any speech in favor of Palestinian rights as inherently supportive of Hamas.”

So, while the Trump administration believes the stated “foreign policy” ground is the only thing necessary to deport any noncitizen based on its own subjective determination, the plaintiff-undergraduate says this decidedly vague premise is a violation of the First Amendment, the Fifth Amendment, and various federal laws — including immigration law.

“The issuance of the administrative arrest warrant, pursuant to the Rubio Determination, is motivated by Ms. Chung’s constitutionally protected past, current, or expected beliefs, statements, or associations,” the lawsuit reads. “The Foreign Policy Ground and its implementation through the Policy, the Rubio Determination, and Defendants-Respondents’ attempts to detain Ms. Chung violate her due process rights under the Fifth Amendment as unconstitutionally vague and violative of Ms. Chung’s substantive and procedural due process rights.”

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Chung’s legal effort is also not entirely unlike a shot across the bow as the government appears intent to replicate the Khalil situation with numerous foreign national students who have taken part in on-campus protests since the start of the Israel-Hamas war, which began on Oct. 7 when Hamas-led militants stormed out of Gaza into Israel and killed some 1,200 people, mostly civilians, and took around 250 people hostage. According to Gaza’s health ministry, more than 50,000 Palestinians have been killed since the war began, the majority of them women and children. Authorities in Gaza do not distinguish between civilians and Hamas fighters when reporting casualties.

“ICE’s shocking actions against Ms. Chung form part of a larger pattern of attempted U.S. government repression of constitutionally protected protest activity and other forms of speech,” the lawsuit goes on. “The government’s repression has focused specifically on university students who speak out in solidarity with Palestinians and who are critical of the Israeli government’s ongoing military campaign in Gaza or the pro-Israeli policies of the U.S. government and other U.S. institutions. Now, officials at the highest echelons of government are attempting to use immigration enforcement as a bludgeon to suppress speech that they dislike.”

The lawsuit pleads for the SDNY to take jurisdiction over the matter, bar the Trump administration’s “unlawful Policy of targeting noncitizens for removal based on First Amendment protected speech and advocacy for Palestinian rights” in general, bar the efforts targeting Chung in particular, issue an injunction that would specifically prohibit Chung’s detention and removal from the Empire State and the U.S., and a declaratory judgment that the anti-protester immigration offensive is broadly illegal and unconstitutional.

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Judge hits Trump with TRO over deportation plans

homesafetytechpros — Sat, 15 Mar 2025 20:59:48 +0000

US President Donald Trump arrives before signing the Laken Riley Act into law in the East Room at the White House in Washington on January 29, 2025 (Yuri Gripas/Abaca/Sipa USA/Sipa via AP Images).

The American Civil Liberties Union (ACLU) won an immediate victory against the Trump administration in court on Saturday.

On Saturday morning, attorneys representing several pseudonymous Venezuelan men sued the government in order to bar the implementation of an obscure 18th-century wartime authority.

President Donald Trump is widely expected to invoke the Alien Enemies Act of 1798 in order to bolster his administration’s efforts to fast-track deportations. The ACLU filed their lawsuit, along with Democracy Forward, a D.C.-based nonprofit dedicated to paring back the powers of the executive branch, as a prophylactic measure.

In quick fashion, and at least for now, D.C. District Court Chief Judge James E. Boasberg, a jurist who got his start under George W. Bush and was then promoted by Barack Obama, sided with the plaintiffs.

“The Court has reviewed Plaintiffs’ Complaint and Motion for Temporary Restraining Order,” a minute order reads. “Given the exigent circumstances that it has been made aware of this morning, it has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set.”

In the 24-page lawsuit, the ACLU explained that the law in question is “a wartime measure that has been used only three times in our Nation’s history: the War of 1812, World War 1 and World War II.”

This bird’s-eye-view history lesson, however, is incomplete.

The lawsuit goes on to explain that the wartime authority was “infamously” used by Franklin Delano Roosevelt to intern “noncitizens from Japan, Germany, Italy, Hungary Romania, and Bulgaria.”

Though many such detainees were eventually deported, the complaint argues, the controversial law was “never used as a widespread method of removal.” The lawsuit aims to juxtapose this wartime history with the anticipated use of the law as something of a go-to deportation tool by the current government.

“[T]he AEA has only ever been a power invoked in time of war, and plainly only applies to warlike actions: it cannot be used here against nationals of a country — Venezuela — with whom the United States is not at war, which is not invading the United States, and which has not launched a predatory incursion into the United States,” the complaint reads. “The government’s Proclamation would allow agents to immediately put noncitizens on planes without any review of any aspect of the determination that they are Alien Enemies.”

So far, President Donald Trump has expressly said he will use the disputed law against cartels — singling out “the dangerous Tren de Aragua,” a massive transnational gang based in Venezuela.

The ACLU insists the invocation of the law is inapposite.

“The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead counsel in the lawsuit said in a statement. “It may be the administration’s most extreme measure yet, and that is saying a lot.”

In their motion for a temporary restraining order and an accompanying legal memorandum, the plaintiffs plead urgency.

“Plaintiffs and the proposed class are imminent danger of being removed tonight or early tomorrow morning under the Alien Enemies Act — and this Court permanently losing jurisdiction,” the emergency application reads.

The motion goes on, at length [emphasis in original]:

Defendants’ invocation and application of the Alien Enemies Act patently violates the plain text of the statute and exceeds the limited authority granted to the Executive Branch by Congress. Defendants’ invocation and application of the Alien Enemies Act also violates the Immigration and Nationality Act, statutes providing protection for people seeking humanitarian relief, and due process. In the absence of a temporary restraining order, Plaintiffs will suffer irreparable injury, and the balance of hardships and the public interest favor relief. Critically, moreover, if Plaintiffs are removed to the custody of another country, this Court will lose jurisdiction.

To hear the plaintiffs tell it, the wartime law can only be used in times of actual war and only against an actual “foreign nation or government” that is engaged in a military “invasion” or launching “predatory incursions” into the United States.

“The United States is not at war, nor has it been invaded,” Democracy Forward CEO Skye Perryman said in a press release. “The president’s anticipated invocation of wartime authority — which is not needed to conduct lawful immigration enforcement operations — is the latest step in an accelerating authoritarian playbook.”

The legal memo elaborates:

The President has invoked — or will imminently invoke — a war power, the Alien Enemies Act of 1798 (“AEA”), in an attempt to summarily remove noncitizens from the United States and bypass the immigration laws Congress has enacted. In either circumstance, a Temporary Restraining Order is needed because there may not be sufficient time for this Court to intervene between the time when the Act is invoked and when the planes removing Plaintiffs-Petitioners depart the United States. But the United States is not at war, and the prerequisites for invocation of the AEA have not been met.

Since none of the law’s conditions are met, the court filings argue, Trump’s would-be use of the law violates the AEA itself, various immigration laws, the Fifth Amendment’s guarantee of due process, and the constitutional right to habeas corpus.

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The judge overseeing the matter did not much elaborate except to say the plaintiffs “satisfied the four factors governing the issuance of preliminary relief.” Boasberg ruled that the government “shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court.”

While the court’s order could last at least two weeks, intervening motions practice and oral argument could soon and substantially shift the calculus in the already fast-moving litigation.

The docket for the case was nearly instantly voluminous with motions, orders, appearances — and the government’s swift appeal of the temporary restraining order to the D.C. Circuit Court.

Boasberg, for his part, also quickly scheduled two hearings. One hearing is slated for Saturday evening to deal with class certification issues. A second hearing, related to the restraining order and likely some merits of the case, is scheduled for Monday afternoon.

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