Tren de Aragua, the Alien Enemies Act, and the ‘State Secrets Privilege’

As my colleague George Fishman recently explained, President Trump is using the Alien Enemies Act of 1798 (AEA) to remove alleged alien members of the Venezuelan transnational criminal organization (TCO) Tren de Aragua (TdA). On March 24, Trump DOJ lawyers asserted the “state secrets privilege” in arguing why it could not comply with a federal court order demanding information about both flights that carried those aliens out of the United States. By definition, its basis for doing so is “secret”, but open-source information points to many good grounds for its claims.

The Birth and Spread of Tren de Aragua. TdA was formed over a decade ago in Tocorón prison in the Venezuelan state of Aragua, which is on the north of the country bordering the Caribbean. It’s not entirely clear why it’s called “Tren de Aragua” (“Aragua train”), but InSight Crime suggests the name may be linked to a union once formed in connection with an uncompleted railway system there.

While InSight Crime isn’t sure about how the group got its name, the outlet is quite clear about the group’s ascendency:

Hector Rustherford Guerrero Flores, alias “Niño Guerrero”, turned the Tren de Aragua into what it is today during his imprisonment in Tocorón.

Under Niño Guerrero’s leadership, Tocorón became one of the country’s most notorious prisons, largely due to the Venezuelan government’s unofficial policy of handing over control of some prisons, including Tocorón, to criminal bosses known as pranes. This freedom and the gang’s criminal income allowed for the construction of a zoo, a swimming pool, a playground, a restaurant, and a nightclub inside the prison.

From its “humble” roots in Tocorón prison, TdA expanded its control to neighboring communities, and then further by forming alliances with smaller gangs in other states.

TdA went international by expanding to the Colombian border, where it clashed with existing Colombian criminal groups like the National Liberation Army (ELN). After gaining a foothold in the border town of La Parada (a major crossing point for Venezuelan emigres), it began exploiting migrants and seizing smuggling routes.

TdA and the Venezuelan Diaspora to the United States. As Venezuela transformed from a petroleum powerhouse to an “economic basket case” under socialist strongman Hugo Chavez and his successor, Nicolás Maduro, in the past decade-plus, that flow of emigres became a flood, with an estimated diaspora of 7.8 million Venezuelan “refugees and migrants” in 2024, up from 700,000 in 2015.

The vast majority of them (2.8 million) went to neighboring Colombia, with lesser numbers decamping to Peru (1.5 million), Brazil (568,000), Chile (533,000), and other states in the immediate region.

Few, at least originally, came to the United States. Between FY 2018 and FY 2020, Border Patrol agents apprehended a combined total of 3,645 Venezuelan illegal migrants at the Southwest, Northern, and Coastal borders, an average of just 1,215 per year.

That changed, as I have explained in the past, after President Biden’s DHS Secretary, Alejandro Mayorkas, first designated Venezuela for “Temporary Protected Status” (TPS) in March 2021.

In FY 2022 alone, CBP at the ports and borders encountered more than 189,000 inadmissible Venezuelan migrants, a figure that surged to nearly 335,000 in FY 2023 after the Biden administration concocted a scheme under which nationals of that country and Cuba, Haiti, and Nicaragua without visas could fly directly into the United States for release (“CHNV Parole”).

By the time Mayorkas redesignated Venezuela for TPS in September 2023, an estimated 714,700 nationals of the country were eligible for protection from removal under that designation.

Few complications of that migrant surge were bigger than DHS’s inability to check on the criminal backgrounds of illegal Venezuelan entrants once they were here, and there was no apparent effort to vet nearly 121,000 Venezuelans who came under CHNV Parole, a program briefly halted in August 2024 over fraud concerns.

Media reports on high-profile crimes committed by TdA members who entered the United States over the past four years suggest the group took advantage of the Biden administration’s permissive border-release policies to extend its reach into the United States.

Consider the following, from NBC News in March:

In the U.S., law enforcement has accused dozens of people of belonging to Tren de Aragua in at least 14 states, according to an NBC News analysis. The crimes include sex trafficking in Nashville, Tennessee; ATM theft in New York; a contract killing in Miami; and low-level arms dealing in Denver. Six states — Colorado, Florida, Illinois, New York, Texas and Virginia — have what police have identified as the most organized presence, with enterprises that mirror their Latin American operations. [Emphasis added.]

Biden’s Treasury Department Sanctions TdA. Trump highlighted the group’s activities on the 2024 campaign trail, but lest you think that TdA is simply a bête noire used by the then-candidate as a strawman for all the failings of the last administration’s immigration policies, think again.

It was Biden’s Treasury Department that designated TdA as a transnational criminal organization in July 2024, explaining:

As Tren de Aragua has expanded, it has opportunistically infiltrated local criminal economies in South America, established transnational financial operations, laundered funds through cryptocurrency, and formed ties with the U.S.-sanctioned Primeiro Comando da Capital, a notorious organized crime group in Brazil.

Biden’s State Department Offers Rewards for Petrica, Niño Guerrero, and Giovanny. The same day Treasury designated TdA as a TCO, Biden’s State Department offered combined rewards of $12 million for information related to three of the group’s leaders: Yohan Jose Romero, aka “Johan Petrica”; the previously referenced “Niño Guerrero”; and Giovanny San Vicente, aka “Giovanny”, “Viejo Viejo”, and “El Viejo”.

As the State Department explained with respect to Niño Guerrero and Giovanny:

As Tren de Aragua infiltrated Colombia, the then-mayor of Bogotá, Claudia López, attempted to put pressure on the Venezuelan government to help control Tren de Aragua leaders at the Tocorón prison. In a September 2022 press conference, she requested the assistance of the Venezuelan government, specifically requesting they isolate the two leaders of Tren de Aragua, Niño Guerrero and alias Giovanny, who were detained at Tocorón prison.

As the reward offers for the trio note, each is offered for “support of the FBI’s joint effort with the Colombian National Police (CNP) to target leaders of Tren de Aragua” (emphasis added).

Apparently, TdA has also expanded into that most recession-proof activity, gold mining. According to the State Department’s notice for Petrica:

By 2015, Petrica made a presence for Tren de Aragua in Las Claritas, a gold mining town near the Venezuelan borders with Brazil and Guyana. The mines near Las Claritas contain the largest gold deposits in Venezuela and the fourth most in the world. In a short time, Petrica gained full control of the area for Tren de Aragua. [Emphasis added.]

Nor is Colombia the only South American country that’s dealing with TdA.

In February 2024, Ronald Ojeda, a 32-year-old former officer in the Venezuelan army who escaped to Chile after he was arrested for his part in a plot to overthrow the Maduro dictatorship, was kidnapped from his apartment in Santiago and murdered by men posing as Chilean police officers.

Ojeda’s kidnapping and murder are a very big deal in Chile, with the country’s attorney general and minister of foreign affairs alleging Ojeda met his demise at the hands of TdA members, and linking the crime to the Venezuelan government itself.

Here’s where it gets interesting. On January 22, Rep. Maria Salazar (R-Fla.) tweeted the following:

Not to jump ahead, but El Turco is one of three TdA members the Trump administration declared alien enemies under the AEA on March 24 with an eye to extradition to Chile for criminal offenses there.

The other two are Miguel Oyola Jimenez, who was arrested in Washington state and is wanted in Chile for “kidnapping for ransom”; and Edgar Javier Benitez Rubio, who’s wanted for “kidnapping with homicide” and who was arrested in Indiana.

According to DOJ, El Turco was first deported to Venezuela in August 2023, only to thereafter reenter the United States. In the interim, if the Chilean government is correct, he used his time abroad to assist in the kidnapping and killing of Ojeda.

Trump’s March 11 TdA Foreign Terrorist Organization Designation. On February 20, the State Department designated TdA as a “foreign terrorist organization” (FTO) and on March 11, Trump issued Presidential Proclamation (PP) 10903, “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua”.

As that PP explains:

TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.

TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus. [Emphasis added.]

Take notice of the highlighted portion, about the role TdA plays in the Maduro regime’s scheme to destabilize democracies throughout the Americas. In essence, the president is claiming that this TCO/FTO is a de facto paramilitary for the government in Caracas.

All of those allegations against TdA from Chile, Colombia, and elsewhere — including allegations the Biden administration acted upon, appear to support that claim.

The State Secrets Privilege. On March 15, a group of Venezuelan nationals facing expulsion under the AEA due to claims that they are members of TdA filed a complaint and petition for habeas corpus in U.S. district court in Washington, D.C., in a case captioned in JGG v. Trump.

JGG was assigned to the chief judge of the court, James Boasberg, and he has been fighting for the past two weeks-plus with Trump’s DOJ for information about the aliens it has removed from this country and flights that took them to El Salvador, where they are ostensibly being detained.

The administration has invoked the “state secrets privilege” as grounds for refusing to provide the court with information about the flights that took those aliens out of the United States.

As the Legal Information Institute explains, this privilege is available to the executive branch in civil cases “to ensure the government is not forced to reveal military or other secrets”. In its notice invoking the privilege, DOJ argues:

The Court has all of the facts it needs to address the compliance issues before it. Further intrusions on the Executive Branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the Court lacks competence to address. [Emphasis added.]

In his declaration attached to that notice, Secretary of State Marco Rubio avers that disclosure of the information the court seeks “could cause the foreign State’s government to face internal or international pressure, making that foreign State and other foreign States less likely to work cooperatively with the United States in the future, both within and without the removal context”.

Most analyses of these filings suggest this is simply a battle between the executive and judicial branches over the former’s prerogatives and the latter’s competence and jurisdiction, and often highlight Judge Boasberg’s service as a judge on the super-secret Foreign Intelligence Surveillance Court (FISC) in an attempt to prove that he can handle intelligence information.

Not Just Another Pack of Street Thugs. Such constitutional turf battles plainly come through in the briefings in this matter, but I am not so sure that there isn’t more at issue in this case.

TdA isn’t just another pack of street thugs. As Stephen Dinan reported in the Washington Times in September, the group posed such a threat to the “Mexican Mafia”, a “coalition of Hispanic gangs … primarily involved in drugs in the Southwest”, that “Eme” (as they are known) greenlighted hits on TdA members.

Dinan quoted one expert, who explained: “TdA will study the state laws, study law enforcement. They find the weakness in the area of operation where they’re at.” That’s pretty sophisticated, without even considering the other activities the group has engaged in throughout South America.

And while El Salvadoran President Nayib Bukele has admitted 238 expelled TdA members ended up in his country, where they were placed in his high security “Terrorism Confinement Center”, there’s no way of knowing whether flights carrying aliens removed under the AEA didn’t continue on and deposit TdA members elsewhere.

Of course, information about those flights would lead directly to the manifests containing the identities of the removed aliens, both in El Salvador and elsewhere.

That raises the question of how the government determined they were TdA members. As CNN reported on March 25, some of the aliens removed “have said they were wrongly suspected due to their tattoos”.

While it’s possible DHS relied solely on skin art to identify those removed, I have experience in such determinations and seriously doubt it.

The administration knew that these removals would end up in federal court, and if it were found to have used the extraordinary power in the AEA to remove those aliens based solely on questionable evidence or facts, courts would likely have struck down such authority and barred its future use.

DHS is much more likely have relied upon intelligence from Chile, Colombia, Brazil, and/or other regional allies in identifying TdA members in the United States, but the department likely wouldn’t have been able to use that information in any setting in which it would have been publicly disclosed, such as removal proceedings under the Immigration and Nationality Act (INA).

Disclosing that intelligence would have required the assent of such countries, which they likely wouldn’t have given to protect their own sources and methods.

And, even if our foreign allies did allow their information to be used, either TdA or its confederates in the Venezuelan government may have put those governments and their officials in the crosshairs. That’s a threat to our national security and diplomatic relations, and yet another reason why public disclosure was unlikely.

Interesting Take from Former AG Barr. Former Attorney General Bill Barr — a frequent Trump critic — surprised many on March 25 when he told Fox News hosts Bill Hemmer and Dana Perino that federal judges — including Judge Boasberg — “are trying to usurp the responsibility of the president in the national security area” in issuing injunctions against Trump’s immigration efforts.

More specifically, he continued:

Trying to have a trial as to whether or not [an alien facing removal is] a member [of TdA] is wrong. If they have evidence, they can bring it under habeas corpus. But think about it, how can you ever prove this … beyond a reasonable doubt for any of these people? We’re trying to show that they’re members of a gang, a Venezuelan gang. It’s ultimately a judgment call that has to take into account the need for speed, the risk to the American people.

By the way, Barr agreed with the president that the entry of TdA members was a “predatory incursion by a foreign nation or government”, noting that when he was AG, he “indicted the Maduro government in Venezuela because they were directly involved in drug trafficking to the United States, and we determined they were doing it to hurt the United States”.

With respect to Barr’s habeas argument, two points:

First, nothing suggests that any of the named plaintiffs in JGG were among those removed. Second, even though those plaintiffs are challenging the government’s contention that they are TdA members, the court will likely have to accept cursory statements from DHS, DOJ, or State Department officials that they are, in fact, TdA.

Don’t believe everything you read about Trump’s round-up and removal of Tren de Aragua members under the Alien Enemies Act. TdA criminals are also tools of hostile Venezuelan government policy, and the administration is likely relying on more than tattoos to identify members who entered here illegally — it’s almost definitely trusting its beleaguered allies’ sensitive intelligence, as well.