Judge Declines to Issue Emergency Order Against More Expulsions Using Alien Enemies Act

Federal District Court Judge James Boasberg denied a request for an emergency order to bar more expulsions of people using the Alien Enemies Act, on the grounds that a recent Supreme Court ruling leaves him powerless to do so.

Last week the Supreme Court lifted Boasberg’s order to block mass rendition of Venezuelans to the notorious Terrorism Confinement Center (CECOT) prison in El Salvador. Boasberg’s contempt proceedings are still underway regarding the regime’s refusal to turn around two flights and not launch a third flight, but that occurred before the Supreme Court intervened.

The Supreme Court ruling stipulated that the government can use the AEA to deport people, but such people must be allowed to file a legal challenge against their removal. Such a challenge must be individual and in the form of a habeas corpus petition filed in the jurisdiction where they are being detained.

The American Civil Liberties Union submitted emergency filings, asking for court orders to block a second round of renditions that was being set up in the Dallas, Texas area.

The gist of the hearing, provided by Allison Gill who listened in, was:

Boasberg: I have a number of concerns with my ability to act on the TRO [temporary restraining order], but what I need to know before I do anything, I need to find out what’s happening in court and what’s happening on the ground. Can I get an update?

Lee Gelernt for ACLU: We have sought emergency relief in the 5th Circuit [Court of Appeals] and SCOTUS simultaneously in light of the emergency circumstances, but haven’t heard from either.

Boasberg: You’re seeking no removal for 30 days.

Gelernt: Yes because that’s what they asked for in World War II. We just got word more people are being moved to be sent out tonight.

Boasberg: They’re all being moved out of the Northern District?

Gelernt: Yes. Before it was the Southern District, now it’s the northern,  and they denied the TRO there because the government said they weren’t going to be removed. But then we learned a few hours later that more people were going to be removed, given a notice in English, but without even 24 hours notice. So whatever SCOTUS meant, that can’t possibly be “sufficient notice.”

Boasberg: But you believe this is before the 5th circuit and SCOTUS?

Gelernt: Yes but we haven’t heard. [ACLU hae a TRO pending in the northern districts with class requests. TROs were in place in Southern District of New York and the District of Colorado.]

Boasberg, addressing Drew Ensign representing the Department of Justice: Do you want to add or contest anything about the legal landscape? So now, can you talk to me about what’s going on on the ground? Do you agree the plaintiffs were given 24 hours notice in English only?

Ensign: I was told they were given in peoples’ language they understand, so not just in English. That’s what I’ve been told. I’ve also been told there are no flights tonight or tomorrow.

Boasberg: Does a person have to check a box to indicate he wants to file, or does he actually have to get to court?

Ensign: You can express you’d like to file habeas, then you have at least 24 hours to file a petition. And no one will be removed if they’ve requested to file a habeas petition.

Boasberg: So they can initially say they want to file, then there’s a timeline to actually file?

Ensign: The initial period is a window to express content, the second window is 24 hours to actually file it. There have been many filed.

Boasberg: Many habeas petitions?

Ensign: Yes in several districts. New York, Colorado, etc.

Boasberg: Do you have reason to doubt Mr. Ensign that there are no flights leaving tonight or tomorrow?

Gelernt: I’ll take him at his word, but it’s not ruling out Sunday, Monday, Tuesday, but we still need the relief. But about the notice, the notice that we have, there’s no box to contest, much less how to do it or what the timeframe is. We emailed it to you.

Boasberg: I’m going to print it out… give me a moment. Will you email a copy to Mr. Ensign so he has a copy, too?

Gelernt: We will.

Boasberg: This one doesn’t even have an ability to challenge this. Is this the only notice they’ve been given?

Gelernt: It’s the only one we have. If the government has a different one, we’d want to see it.

Ensign: I believe this is correct. This is the notice given. I was told it was also given in Spanish.

Boasberg: But it doesn’t say you have the right to contest. It’s just a notice?

Ensign: I don’t think so because SCOTUS says it just needs to give notice, not mechanisms for how to challenge.

Boasberg:  [reminds Ensign of the SCOTUS order] So we don’t know the time windows that have been given? So they get this notice, then they have to express they want to challenge, then they have 24 hours to get it done? I have to say this notice seems problematic to me. You said there were no flights tonight and no plans for tomorrow. Could tomorrow change?

Ensign: There are no flights tonight, and none planned for tomorrow.

Boasberg: If we recessed could we get more info about tomorrow?

Ensign: I am prepared to try.

Boasberg: Mr. Gelent, in order for me to have any authority to act, there must be a valid claim in your current complaint. I know you’re going to amend to bring habeas next week. That claim will be on behalf of members deported 3/15 [15 March]?

Gelernt: Correct.

Boasberg: So that habeas can be venued in DC because they’re overseas. But why do you think you have a stand alone claim that SCOTUS says I don’t have venue for?

Gelernt: This seems to stand outside habeas because this is outside habeas because they don’t yet have notice. So this is a 1331 APA action, so this stands outside habeas, there’d be no way to effectuate habeas without ensuring notice. Absent some kind of notice protocol, we’d have to file in all 94 districts.

In the end, Boasberg declined ACLU’s motion for a TRO. He told the ACLU “I’m sympathetic to everything you’re saying. I just don’t think I have the power to do anything about it.” In particular, the Supreme Court’s ruling that struck down his previous ruling insisted that legal challenges must be filed in the jurisdiction where people are being held. North Texas is not his jurisdiction.

Boasberg pointed specifically to one part of the Supreme Court’s April 7 ruling, which said that legal challenges to deportations under the AEA must be filed in the jurisdictions where individuals are detained. Boasberg is in the District of Columbia. The immigrants are in Texas.

Click here for more details.

Click here for Allison Gill’s on-the-fly posting of what happened in the hearing.