Judge Skips Key Facts in Ordering Release of Alleged Tren de Aragua Couple

On April 25, Judge David Briones of the U.S. District Court for the Western District of Texas (W.D. Texas) issued an order directing the government to release two aliens alleged to be members of Tren de Aragua (TdA) and subject to removal under the Alien Enemies Act (AEA), as well as barring the removal of any other alien in the W.D. Texas under the AEA unless the government gives them a 21-day heads-up to allow them to seek judicial review. The judge skipped a lot of key facts in that case and thus botched the burden the government must bear to remove such individuals. Those are not minor issues.

Tren de Aragua and Its Expansion into the United States. I have explained at some length of late the bases of the Trump administration’s attempts to remove alleged TdA members under the AEA. Here’s a quick recap.

TdA formed in a Venezuelan prison in approximately 2013, and then expanded its operations throughout South America, following an exodus of Venezuelan emigres from that economically and politically challenged nation.

Wherever the group has expanded, well-organized savage criminality has followed, and as hundreds of thousands of Venezuelan nationals flooded illegally into the United States under the Biden administration, the group began making its mark in this country, as well.

In July 2024, Biden’s Treasury Department designated TdA as a transnational criminal organization (TCO), a move that “underscore[d] the escalating threat it poses to American communities” according to then- Under Secretary of the Treasury for Terrorism and Financial Intelligence Brian Nelson at the time.

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, most notably “Hector Rusthenford Guerrero Flores, a/k/a ‘Niño Guerrero’”.

As the State Department explained, TdA under Niño Guerrero expanded from its prison origins to assuming “control of gold mines in Bolivar State, drug corridors on the Caribbean coast, as well as … some of the clandestine border crossings between Venezuela and Colombia”.

TdA Designated as a Foreign Terrorist Organization. On the 2024 campaign trail, Trump attacked the Biden-Harris administration’s open-borders policies for allowing TdA to gain a foothold in the United States and carry out its operations here.

Trump won, and immediately after taking office asked the State Department to determine whether TdA should be designated as a foreign terrorist organization (FTO), a process I described in January.

After completing its assessment, on February 20, State designated TdA as an FTO, concluding: “This brutal criminal group has conducted kidnappings, extorted businesses, bribed public officials, authorized its members to attack and kill U.S. law enforcement, and assassinated a Venezuelan opposition figure.”

PP 10903. Just over two weeks later, on March 15, Trump issued Presidential Proclamation (PP) 10903, “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua”.

In that PP, the president concluded that TdA “operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela”, and supports “the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States”.

Finding TdA “is perpetrating, attempting, and threatening an invasion or predatory incursion against” the United States, he proclaimed, in terms tracking the operative language of the AEA, that:

all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.

Pursuant to that proclamation, those individuals described in the PP are subject to removal — not under the Immigration and Nationality Act (INA) like most removable aliens — but under the AEA itself.

The Alien Enemies Act. Under the terms of the AEA, 50 U.S.C. § 21:

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.]

While there is not a lot of caselaw interpreting the AEA, precedent is favorable to the government’s position.

In its 1948 opinion in Ludecke v. Watkins, for example, the Supreme Court observed that the act is “as unlimited” a grant of power “as the legislature could make it”.

Critically, the Court there also explained that the AEA involves “matters of political judgment for which judges have neither technical competence nor official responsibility”. That said, there are limits on the executive’s power to use that authority.

J.G.G. v. Trump. That power to detain and remove aliens under the AEA has been invoked on three occasions in the past, all during declared wars. This is the first time a president has used it in response to an “invasion or predatory incursion”.

The Trump administration quickly utilized that authority, flying 238 alleged TdA members from detention facilities in Texas to El Salvador on March 15, where those aliens were allegedly placed in that country’s Center for the Confinement of Terrorism (CECOT).

That same day, five Venezuelan nationals in DHS custody filed a complaint in the U.S. District Court for the District of Columbia (D.D.C.), under both the AEA and the Administrative Procedure Act (APA), arguing they were “threatened with imminent removal under” PP 10903.

I’ll skip ahead to the (current) status of that case, captioned J.G.G. v. Trump, to note that on April 7, the Supreme Court held that claims by alleged TdA members challenging AEA removal under PP 10903 could only be heard in habeas proceedings before judges with jurisdiction over their places of detention.

Most importantly, however, the Court also explained:

Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “‘judicial review’” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an alien enemy fourteen years of age or older.”

Sanchez Puentes v. Garite. That leaves many questions unanswered, most specifically which party — the alien or the government — bears the burden of proof in those habeas proceedings, and how strict that burden of proof should be.

Which brings me to Judge Briones’ opinion in the case referenced at the outset, Sanchez Puente v. Gente.

The petitioners are married Venezuelan nationals, Julio Cesar Sanchez Puente and Ludis Norelia Sanchez Garcia, and to call the history of their case “complicated” would be an understatement.

Judge Briones goes into great detail about their various arrests by DHS officials in this country, and their serial detentions and sundry court-ordered releases, and while such details are generally relevant, key to the court’s analysis is the evidence the government presented to show they are TdA members subject to removal under PP 10903.

Sanchez Garcia had been married in the past to one Arrevala Rivera, whom she at one point identified as a TdA member. After the couple separated approximately 10 years ago, Arrevala Rivera was “killed by the Venezuelan government due to his affiliation as a Tren de Aragua member”.

Apparently, “law enforcement intelligence” offered by the government, including an August 2024 document that includes information from “a protected source who previously worked for the Venezuelan national police and was assigned to targeting Tren de Aragua”, identifies Sanchez Garcia herself as a TdA member, and as a “money receiver and lookout” for the group (among other things).

The information the government offered to show Sanchez Garcia is a TdA member, at least as described by the court, is all over the place, but in any event, Judge Briones concluded that, “Beyond these shoddy affidavits and contradictory testimony”, government officials “haven’t provided ‘membership’ [sic] at all as it relates to Petitioner Sanchez Garcia.”

And, as per the court, a declaration from a senior ICE official admits that “unlike Sanchez Garcia”, the agency “has not received intelligence confirming that Sanchez Puentes is himself a member of TdA”.

Rather, ICE found “sufficient indicia to have determined” he, too, is a TdA member as “he is married to, resides with, has children with, and entered the United States unlawfully with Sanchez Garcia, a known TdA member”.

The Burden of Proof. I’ll take Judge Briones’ assessment of the infirmities in the evidentiary record at face value. The bigger issue, however, is the burden that the court imposed on the government in weighing that record.

The judge’s opinion makes scant reference to how this pair came to the United States, but it appears they entered illegally at El Paso, Texas, on October 13, 2022, and were thereafter taken into custody. Nothing at all in the court’s opinion suggests that they were ever lawfully admitted.

From a constitutional standpoint, that’s a significant fact, but one the court essentially glossed over. Let me explain.

The Supreme Court in 2001 recognized that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”. That said, the Court also noted that “the nature of that protection may vary depending upon status and circumstance”.

In other words, aliens lawfully admitted for permanent residence (“green card holders”) receive more due process protection than nonimmigrants lawfully admitted, who in turn are entitled to more process than illegal aliens — and aliens apprehended immediately after entering illegally.

The Court addressed the process due to such illegal entrants in 2020, finding that inadmissible aliens encountered at the ports of entry or shortly after entering the country illegally have “only those rights regarding admission that Congress has provided by statute” — not additional constitutional rights.

Given those facts, if they were facing removal under the INA, Sanchez Puente and Sanchez Garcia would be deemed inadmissible “applicants for admission” under section 235(a) of the INA, and pursuant to section 240(c)(2) of that act, would bear the burden in removal proceedings to show they are “clearly and beyond doubt entitled to be admitted” and are “not inadmissible under” section 212(a) of the INA.

Moreover, as noted, the State Department has designated TdA as a foreign terrorist organization. Based upon the government’s allegations that Sanchez Puente and Sanchez Garcia are members of TdA, they — not the government — would bear the burden in INA removal proceedings to show “clearly and beyond doubt” they aren’t inadmissible under section 212(a)(3)(B)(i)(V) as members of a designated FTO.

As I have made clear, of course, they aren’t facing removal under the INA, but rather under the Alien Enemies Act. Here’s why that legalistic analysis is important, however.

Judge Briones concluded, in accordance with the Supreme Court’s 1966 opinion in Woodby v. INS, that the government bears the burden of proving these aliens are TdA members, under an extremely exacting “clear, unequivocal, and convincing evidence” standard.

That’s a much higher burden than the “preponderance of the evidence” standard in most disputes, but lower than the “beyond a reasonable doubt” standard the government must bear in criminal cases.

That Woodby standard Judge Briones adopts only applies in INA removal hearings, but more importantly, it’s the burden the government must bear (under Woodby and section 240(c)(3)(A) of the INA) to show that lawfully admitted aliens (like Woodby herself) are deportable from the United States, not to prove inadmissible aliens like Sanchez Puente and Sanchez Garcia are excludable.

The dissimilar evidentiary burdens imposed in removal cases under section 240 of the INA reflect the different constitutional rights accorded to lawfully admitted aliens compared to those due aliens — like the two before Judge Briones — who entered illegally and weren’t admitted.

For a third time, these aren’t removal cases under the INA, they’re removal cases under the AEA, but that constitutional analysis is still valid, with the sole difference being that review in AEA cases, as the Supreme Court held, is more limited.

Given all that, when Judge Briones applied the INA burdens of proof to assess whether the government had proven Sanchez Puente and Sanchez Garcia are removable under the AEA, he erred and thus improperly shifted the burden from these inadmissible aliens onto the government.

If I were DOJ, I’d appeal Judge Briones’ order in Sanchez Puentes to the Fifth Circuit as clearly reversible error but ask that court to adopt his reasoning in finding that the INA burden of proof — that illegal entrants like the aliens here must show “clearly and beyond doubt” they aren’t TdA members — applies in these Alien Enemy Act proceedings. Not that anybody’s seeking my counsel.