Federal Judge in Texas Blocks Removal of Three Venezuelan Nationals

On April 9, Judge Fernando Rodriguez of the U.S. District Court for the Southern District of Texas issued a temporary restraining order (TRO) in J.A.V. v. Trump. The TRO blocks the government from moving three Venezuelan nationals — “or any other person” the government claims is removable under Presidential Proclamation 10903 — from the El Valle Detention Center in Raymondville, Texas. Such cases are to be expected after the Supreme Court on Monday lifted a similar bar on removals of alleged Tren de Aragua (TdA) members imposed by a different federal judge in Washington, D.C.

The plaintiffs in this case, identified as “J.A.V.”, “J.G.G.”, and “W.G.H.”, are natives of Venezuela currently in detention at El Valle. None are apparently under a final order of removal under the Immigration and Nationality Act (INA), but the judge’s order indicates that the government has attempted to remove each of them “based solely on” the Proclamation, meaning each is suspected by the government of being a member of TdA.

Presidential Proclamation 10903

Trump’s Proclamation, captioned “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua”, was issued by the president on March 14. Some background on both that Proclamation and TdA is in order.

During the 2024 campaign, then-candidate Donald Trump hammered the Biden-Harris administration over the migrant surge that occurred on its watch, highlighting the criminal activities of TdA members in the United States who entered illegally during that surge.

For example, during a speech in Aurora, Colo., on October 11, he stated that then-Vice President (and Democratic presidential nominee) Kamala Harris had:

imported an army of illegal alien gang members and migrant criminals from the dungeons of the third world. They come from the dungeons, think of that, the dungeons of the third world, from prisons and jails, insane asylums, and mental institutions. And she has had them resettled beautifully into your community to prey upon innocent, American citizens. That’s what they’re doing. And no place is it more evident than right here because in Aurora, multiple apartment complexes have been taken over by the savage Venezuela prison gang known as Tren de Aragua.

Those weren’t just talking points. The day he was sworn in for a second time, President Trump issued an order directing the secretary of State to begin the process of designating TdA and other groups as “foreign terrorist organizations” and “specially designated global terrorists”.

In response to that directive, the State Department designated TdA as a Foreign Terrorist Organization on February 20, setting the stage for the president to issue the Proclamation on March 11.

In section 1 of that Proclamation, the president concluded under his foreign affairs authority that “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of” the government of Venezuelan President Nicolas Maduro.

The U.S. government refuses to recognize Maduro as the legitimate president of Venezuela, claiming he stole a hotly contested (and deeply flawed) July election from his opponent, Edmundo Gonzalez.

In wasn’t the first run-in the federal government has had with the socialist strongman.

In March 2020, under the first Trump administration, DOJ indicted Maduro and 14 other current and former Venezuelan officials in federal courts in New York, Washington, D.C., and Miami for “narco-terrorism, corruption, drug trafficking, and other criminal charges”.

As a DOJ press release at that time explained:

Since at least 1999, Maduro [and others] acted as leaders and managers of the Cártel de Los Soles, or “Cartel of the Suns.” The Cartel’s name refers to the sun insignias affixed to the uniforms of high-ranking Venezuelan military officials. Maduro … and the other charged Cartel members abused the Venezuelan people and corrupted the legitimate institutions of Venezuela — including parts of the military, intelligence apparatus, legislature, and the judiciary — to facilitate the importation of tons of cocaine into the United States. The Cártel de Los Soles sought to not only enrich its members and enhance their power, but also to “flood” the United States with cocaine and inflict the drug’s harmful and addictive effects on users in the United States. [Emphasis added.]

In that vein, the Proclamation states:

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.

…

Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States. [Emphasis added.]

Few in the American press have actually examined Trump’s claim that the Maduro government is using TdA to “destabilize democratic nations in the Americas”.

But as I noted on April 1, the Biden State Department placed bounties totaling $12 million on the heads of the three main leaders of TdA in July 2024 “in support of the FBI’s joint effort with the Colombian National Police (CNP) to target leaders of” TdA.

More recently, a TdA member suspected of masterminding the kidnapping and killing of Maduro opponent Ronald Ojeda in Santiago, Chile, in February 2024 was arrested last month in Texas and is facing extradition to Chile.

As the New York Times reported in February, the Chilean government has said “evidence indicates that Mr. Maduro’s government ordered Mr. Ojeda’s assassination”.

Simply put, TdA isn’t simply a gang of thugs taking over apartment complexes in Aurora — it’s a well-run criminal machine “wreaking havoc throughout” the Americas that at least one reginal ally has accused of engaging in politically motivated murder at the best of the government in Caracas.

That Venezuelan Foreign Minister Yván Gil referred to the group as a “ficción mediática internacional” (“international media fiction”) intended to discredit his government last year, or that Maduro has called TdA “cosmic dust”, or that Venezuelan Attorney General Tarek William Saab claims the killing of Ojeda, who was living in Chile under the government’s protection, was really “a false flag operation that the Chilean State itself covered up” only underscores that conclusion.

Which brings me back to section 1 of the Proclamation, wherein the president, “based on the findings” therein, proclaimed that all Venezuelan nationals aged 14 and above who are TdA members in the United States, and who are not naturalized citizens or green card holders “are liable to be apprehended, restrained, secured, and removed” under the Alien Enemies Act (AEA), 50 U.S.C. § 21.

The Alien Enemies Act

That language in section 1 of the Proclamation tracks the statutory text in the AEA, which provides that:

Whenever 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. [Emphasis added.]

There are only three instances in which the AEA has been utilized since it was enacted in 1798, and in each (during the War of 1812, World War I, and World War II), it was invoked pursuant to a declared war.

In other words, 50 U.S.C. § 21 has never been triggered by an “invasion or predatory incursion”, absent a formal declaration of war.

That said, however, the excerpted run-on sentence in the AEA is written in the disjunctive, indicating the drafters of the act intended for those authorities to be used to detain and remove aliens in response to an “invasion or predatory incursion”, even absent a declared war.

The President’s Authority Over Foreign Affairs

As noted above, Trump used his foreign affairs power in the Proclamation in concluding that TdA was engaged in a predatory incursion in the United States. That was a wise choice, given the deference the Supreme Court has given the executive branch in the diplomatic realm, particularly when it comes to immigration.

In its 1936 opinion in U.S. v. Curtiss-Wright Export Corp., the justices reiterated what was then a 136-year-old principle in concluding that, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

More recently (and saliently), in 1999, the Court “recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations’”.

J.A.V. v. Trump

That, of course, raises the question of whether the courts will find that Trump’s attempted removals of alleged TdA members under the AEA are occurring “in the immigration context” and thus due judicial deference, or instead raise simple factual issues — “is there an invasion or predatory incursion by TdA” and “are the plaintiffs TdA members” — of the sort the government must prove and courts resolve daily.

The first judge who will have to make such determinations is Judge Rodriguez in J.A.V.

Note that he must wrestle with these issues because the Supreme Court on Monday ruled that a different class of aliens alleged to be TdA members and subject to removal under the AEA could not seek relief before a different district court judge in Washington, D.C.

A majority of the Court held that such aliens were entitled to judicial review, but that such review was only available in habeas proceedings. That means that the proper venue for review is where they are being held — Raymondville, Texas, in Judge Rodriguez’s jurisdiction.

In their opinion, the justices appeared to signal that the president was due deference from the courts with respect to aliens subject to removal under the AEA, which they described a “a statute which largely ‘preclude[s] judicial review’”, under the Proclamation. Still, this is uncharted territory for the courts.

George Washington University Law Professor Jonathan Turley expressed a concern held by many about the D.C. case, that those challenging Trump’s TdA removals “forum shopped to get a favorable judge … in Washington”.

If they did (which wouldn’t be unusual), both the plaintiffs and DOJ may have been surprised that Judge Rodriguez — a Trump appointee — not only granted a TRO but also applied it not just to the three named plaintiffs but also to every other alien in El Valle claiming they are also subject to removal under the Proclamation.

My take is that this is simple judicial efficiency, which will forestall multiple plaintiffs filing serial claims, each of which will raise what are essentially the same legal issues, any or all of which may result in different rulings that the Fifth Circuit will have to ultimately resolve.

Any hopes the administration may have had of quickly removing suspected Tren de Aragua members under the Alien Enemies Act have now been dashed, but that doesn’t mean such removals won’t occur. At least now that the cases are in the right court, where Trump’s DOJ has a strong case to make and favorable law to make it.