Why did the DC Court of Appeals Uphold Blocking the Deportation of Criminal Aliens?

Recently, we addressed the injunction issued by the Chief Judge of the District Court of the District of Columbia, James Boasberg, which halted the Trump Administration efforts to deport members of the violent Venezuelan gang, Tren de Aragua (TdA). President Trump had issued a Proclamation declaring members of TdA to be Alien Enemies, and agents of the Venezuelan government, who had encouraged members of the gang to infiltrate the United States in an effort to destabilize our country with their criminal activity. In doing so, the President invoked the Alien Enemies Act (AEA), which states that “[w]henever 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.”

Five “noncitizen Venezuelans” brought a case in the DC District Court and asked that their deportations be stopped. In a series of rulings, Judge Boasberg ordered the Trump Administration to “not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court,” then expanded his order to prevent the removal of “All noncitizens in U.S. custody who are subject to the March 15, 2025 Presidential Proclamation.”

The Attorney General’s Office appealed, claiming the Court did not have jurisdiction to determine whether or not the President could invoke the Alien Enemies Act, and to issue an injunction was an interference in President’s exercise of his Constitutional powers. On March 26, 2025, in a 2-1 decision, a three judge panel of the DC Court of Appeals sided with Judge Boasberg and kept the injunction in place.

What is of primary interest here, though, is the reasoning behind the appellate court’s decision. Judge Boasberg did not give any explanation of his rulings – he merely submitted orders to the government without providing any basis for those decisions. Thus, the opinions provided by each of the three judges at the appeals court is the first chance we have to understand why the lower court would block an action by the Trump Administration that is favored by a majority of the American public.

According to Circuit Judge Karen LeCraft Henderson, “[t]he government asserts that the ‘sole question’ amenable to judicial scrutiny is whether a detained individual is ‘an alien enemy’…whether the person is a fourteen year or older ‘native[], citizen[], denizen[], or subject[]’ of a presidentially declared hostile nation…Any other AEA prerequisites are purportedly ‘political question[s]’ ‘outside the competence of the courts.’” However, “[q]uestions of interpretation and constitutionality – the heartland of the judicial ken – are subject to judicial review.” Thus, “conditional questions – the legal meaning of war, invasion and predatory incursion – are well within [the] courts’ bailiwick.”

This preliminary analysis is true, so far as it goes. But the Court then goes on to discuss the reasons why the President could not use the Alien Enemies Act to remove TdA members from our shores. “[T]he AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to [a] belligerent state,” the Court states. “A central limit to this power is…that the United States be at war or under invasion or predatory incursion.”

Judge Henderson then proceeds to take a very narrow view of what constitutes an invasion or predatory incursion (since there is no declared war between Venezuela and the United States, there is no need to examine the issue in this respect).

“[T]he invasion must be ‘against the territory of the United States by any foreign nation or government.’ 50 U.S.C. [Sec] 21 (emphasis added),” the Court writes. “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…Undesired people do not arrive against the territory. But foreign armies can…invade the territory of the United States.”

Further, in describing a “predatory incursion,” Judge Henderson believes that while “[a]n incursion is a lesser form of invasion,” a predatory incursion is “a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice.”

Judge Wilson’s (ret.) article concludes tomorrow

Illustration: Pixabay

Quick Analysis

Why Did the DC Court of Appeals Uphold Blocking the Deportation of Criminal Aliens?

Despite the President’s Proclamation describing the violent and hostile actions of TdA, and the fact that this criminal gang is sponsored by the nation-state of Venezuela, and is conducting “a form of attack short of war,” Judge Henderson persists in describing Tren de Aragua as “undesired people” engaged in “migration.” Strangely, though, in a section of her opinion entitled “Issues Not Decided,” Judge Henderson specifically states that “I do not pass on whether TdA has conducted an ‘invasion or predatory incursion’ ‘against the territory of the United States.’” The Court also claims to “offer no view on whether TdA’s conduct is ‘perpetrated, attempted, or threatened . . . by a[] foreign nation or government.’ 50 U.S.C. § 21.” While Judge Henderson notes that “[t]he Proclamation claims that TdA ‘is closely aligned with, and [] has infiltrated’ the Venezuelan state such that it is a ‘hybrid criminal state,'” the Court believes “[t]his issue raises disputed questions of sovereignty, authority and control that turn as much on contested facts as they do legal conclusions.” Read again the sections quoted above of the Court’s opinion discussing what constitutes an invasion and a predatory incursion. How can Judge Henderson say she is not deciding these issues, when she clearly offers her opinion that TdA, who she describes as “undesired people” engaged in “migration,” is NOT engaged in either an invasion or predatory incursion? The separate concurring opinion issued by Judge Patricia Millett is similar. You may recall that during oral arguments, Judge Millett was reported to have said “[t]here were plane loads of people. There were no procedures in place to notify people…Nazis got better treatment under the Alien Enemies Act.” Her written opinion continues in the same vein. “In this appeal,” Judge Millett writes, “the government seeks exceptional emergency relief from temporary restraining orders that do just one thing – prevent the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal. Plaintiffs are Venezuelan immigrants who the government claims are members of a violent criminal gang known as Tren de Aragua. In the government’s view, based on its allegation alone, Plaintiffs can be removed immediately with no notice, no hearing, no opportunity – zero process – to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.” This, of course, ignores the torture and endangering of lives that got TdA members arrested in the first place. However, to be fair, much of Judge Millett’s opinion is focuses on the lack of due process given to what their lawyers describe as “undocumented Venezuelans.” “To protect the Nation’s safety and security,” the Court states, “Congress enacted special expedited removal proceedings for noncitizens who have been convicted of committing aggravated felonies…or are deemed to be ‘alien terrorist[s,]’…Even those expedited proceedings allow for notice and an opportunity to be heard before a neutral decisionmaker.” The Court also notes that “[u]nder the AEA, when a ‘complaint against’ an ‘alien enemy resident’ is presented to a court of the United States, the court’s ‘duty’ is to provide ‘a full examination and hearing on such complaint’ and to decide whether there is ‘sufficient cause’ to have that person removed or otherwise detained. 50 U.S.C. § 23.” According to Judge Millett, “[j]udicial review has always been available to noncitizens detained or removed under the AEA. During the War of 1812, Chief Justice John Marshall and federal District Judge St. George Tucker ordered a British subject released because the local marshal had acted beyond his delegated authority by detaining the plaintiff without proper notice. ” Therefore, Judge Millett finds fault in the lack of any procedures for challenges to removal. “The Proclamation does not establish any process by which individuals are given notice of the government’s determination that they meet the Proclamation’s criteria and are therefore removable to a country of the government’s choosing,” Judge Millett states. “Nor does the Proclamation establish any process by which individuals may challenge the government’s determination that they meet the Proclamation’s criteria. Instead, upon the government’s determination that an individual meets the Proclamation’s criteria, that individual is subject to ‘immediate’ removal, without notice and without time or opportunity to challenge their removal.” Judge Millett’s concerns should not be ignored. Due Process is a hallmark of American justice, and is equally available to citizens and noncitizens alike. It is easy to consider the trail of death and destruction wrought by Tren de Aragua, and believe that their immediate removal from our borders can only be beneficial to the United States. But as Judge Millett so inartfully pointed out, even Nazis deserve notice, and the opportunity to be heard. The dissenting Judge, Justin Walker, believes that the DC District Court does not have jurisdiction over the case. “[W]hat is at this point uncontested is that ‘individuals identified as alien enemies . . . may challenge that status in a habeas petition’…The problem for the Plaintiffs is that habeas claims must be brought in the district where the Plaintiffs are confined. For the named Plaintiffs at least, that is the Southern District of Texas. Because the Plaintiffs sued in the District of Columbia, the Government is likely to succeed in its challenge to the district court’s orders.” In other words, the “undocumented Venezuelans” who brought their case in the DC District Court should have brought a habeas petition in the jurisdiction where they are being held. As Judge Walker notes, “’At its historical core, the writ of habeas corpus’ serves ‘as a means of reviewing the legality of Executive detention.’ Indeed, its most central ‘historic purpose’ was ‘to relieve detention by executive authorities without judicial trial.’ This ‘great and efficacious writ’ did so by requiring the custodian to ‘produce the body of the prisoner’ […]

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