By Luc Cohen, Tom Hals
NEW YORK (Reuters) -Two U.S. judges on Tuesday extended temporary blocks on some deportations of Venezuelan migrants and signaled that President Donald Trump’s invocation of a 1798 law historically used in wartime to speed up their removal from the United States may not survive judicial review.
Denver-based U.S. District Judge Charlotte Sweeney wrote in a ruling that Trump’s administration must give Venezuelan migrants detained in Colorado notice 21 days in advance before any deportations under the Alien Enemies Act and must inform them of their right to challenge their removal.
And at a court hearing in Manhattan, U.S. District Judge Alvin Hellerstein appeared inclined to require the administration to notify Venezuelans at least 10 days in advance before deporting them under that 18th century law. Hellerstein said he understands Trump’s desire to move quickly on deportations but that the administration must afford migrants due process.
"This is not a secret court, an inquisition in medieval times. This is the United States of America," Hellerstein said.
Hellerstein also said Trump’s March 15 proclamation invoking the law to deport hundreds of men accused of being members of the Venezuelan gang Tren de Aragua to a prison in El Salvador may run afoul of the U.S. Constitution’s Eighth Amendment protections against cruel and unusual punishment.
"This proclamation is contrary to law," said Hellerstein, an appointee of Democratic President Bill Clinton.
Relatives of many of the deported Venezuelans and their lawyers have denied that they are Tren de Aragua members and have said they were never given the chance to contest the administration’s allegations of gang affiliation.
Trump’s administration has designated Tren de Aragua as a foreign terrorist organization.
The judges provided the first judicial guidance on how the Trump administration can ensure due process rights under the Alien Enemies Act since the U.S. Supreme Court’s April 7 order requiring migrants be given the opportunity to challenge their removals in court.
The Supreme Court in its order did not specify how much notice migrants should be given, nor did it resolve the validity of the administration’s reliance on that law to carry out the deportations.
At the hearing in Manhattan, Justice Department lawyer Tiberius Davis said migrants would be given at least 24 hours to contest their deportations.
The deportees sent by Trump’s administration to El Salvador are being detained in the country’s massive anti-terrorism prison under a deal in which the United States is paying President Nayib Bukele’s government $6 million.
HARDLINE APPROACH
The deportations are part of the Republican president’s hardline approach toward immigration since he returned to office in January.
"The president was elected on this exact program and it remains his most popular policy," Davis said at the hearing.
The American Civil Liberties Union, representing the migrants in both states, had urged the judges to provide notice 30 days in advance. That timetable was in line with the procedure that the U.S. government used the last time the Alien Enemies Act was invoked, during World War Two, to intern and deport people of Japanese, German and Italian descent.
The law authorizes the president to deport, detain or place restrictions on individuals whose primary allegiance is to a foreign power and who might pose a national security risk in wartime.
In her decision, Sweeney wrote that the ACLU was likely correct that the Alien Enemies Act was inapplicable because Tren de Aragua’s presence in the United States did not amount to an act of war.
"The court properly recognized that this wartime authority cannot be used during peacetime and that the government is not complying with due process," Lee Gelernt, the lead ACLU lawyer in the case, said in a statement.
On Saturday, the Supreme Court weighed in again, blocking what advocates said was the imminent removal of dozens of Venezuelans held in Texas without due process.
In a separate case, the Trump administration was accused of violating a judge’s order to provide information about its efforts to facilitate the return to the United States of Kilmar Abrego Garcia, a Salvadoran man who lived in Maryland, according to a court filing made public on Tuesday.
The administration has acknowledged that Abrego Garcia was deported in error to El Salvador last month.
Maryland-based U.S. District Judge Paula Xinis last week ordered the administration to provide documents and answer questions by the end of Monday about its efforts to comply with a court order to facilitate Abrego Garcia’s return.
The Trump administration said in the same joint filing that it made a good-faith effort to comply with the demands for documents and to answer questions from Abrego Garcia’s legal team.