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’ to the ‘judge or court’ and provide a ‘satisfactory excuse’ for the prisoner’s detention.” And that application should have been made to the District Court in Texas; “habeas claims must be brought where the petitioner is confined, and the Plaintiffs are not confined in the District of Columbia,” Judge Walker states.
Judge Walker’s opinion is a tacit admission that the Plaintiffs knew they would stand a better chance of success in the DC District Court, than in the Court where the challenge belonged. This is called “forum shopping.”
According to the Legal Information Institute at Cornell University, “[f]orum shopping refers to the practice of pursuing a claim…in the court that will treat the claim most favorably…[w]hile forum shopping is still permitted under limited circumstances, the practice is generally discouraged in the modern legal system.”
Why would the practice of forum shopping be discouraged? Clearly, so Judges like Henderson and Millett do not hear a case that has no business being heard in their court.
The case is now headed to the US Supreme Court.
Stay tuned – this controversy is far from over.
Judge Wilson served on the bench in NYC
Illustration: Pixabay