SCOTUS Blocks Alien Enemy Act Removals for Tren de Aragua Members

Around 1:00 am on Saturday morning, the Supreme Court issued an order in A.A.R.P. v. Trump, blocking the government’s removal of “Venezuelan men in immigration custody” facing removal under the Alien Enemies Act (AEA) as suspected members of a well-oiled crime syndicate, Tren de Aragua (TdA). The whole affair, which will essentially block returns until some court can weigh in on the validity of the president’s actions, gives new meaning to the phrase “midnight judges”.

TdA and the Biden Migrant Surge

Between FY 2022 and January 2025, CBP encountered more than 9.432 million inadmissible aliens at the borders and the ports, 902,000 of whom were Venezuelan nationals.

Prior to the migrant surge triggered by the Biden administration’s border and parole policies, few Venezuelans entered this country illegally.

According to CBP records, its immigration officers encountered fewer than 2,800 Venezuelan nationals at the Southwest border in all of FY 2020, and 2,274 others between October 2021 (the first month of FY 2022) and February 2022 (the first full months of the last administration). That’s 5,061 in total.

As I explained in September 2023, however, that changed after Biden’s DHS secretary, Alejandro Mayorkas, initially designated Venezuela for temporary protected status (TPS) in March 2021.

That TPS designation only protected nationals of that country who were already here on that date from removal, not those who followed. Smugglers and would-be illegal immigrations rarely read the fine print, however.

Consequently, between the time of that designation and October 2021, CBP encountered a whopping 46,404 illegal Venezuelan migrants, and then more than 187,700 in FY 2022, before CBP Venezuelan encounters climbed to nearly 335,000 in FY 2023. Nearly all were released in lieu of expulsion under Title 42 or detention.

Because illegal Venezuelan immigration was uncommon prior to that initial TPS designation, few released Venezuelan migrants had relatives or friends to provide them financial support here, meaning the costs to house, clothe, and feed them all fell on the cities and towns in which they settled.

Many went to New York City, which was especially hard-hit by the Biden migrant surge. As NBC News reported in September 2023: “The migrants in New York’s shelter system are from all over the world, but many are from Venezuela.”

Note that Venezuelans with TPS are employment-eligible, but the majority of the ones who were released after Mayorkas issued that initial TPS designation weren’t.

Democrats in NYC and other cities screamed about the costs of providing for so many aliens who couldn’t lawfully work, so in September 2023 Mayorkas redesignated the country for TPS. That meant that TPS protection — and work permits — were now available to an estimated 714,700 Venezuelans who entered before the completely arbitrary date of that redesignation, July 31, 2023.

Six months prior to that redesignation, and concerned about the political optics of increasing numbers of Venezuelans crossing the Southwest border illegally, in January 2023 the Biden White House announced that up to 30,000 nationals of that country and Cuba, Haiti, and Nicaragua per month would be allowed to apply under a special program, CHNV Parole.

Beneficiaries of CHNV Parole were allowed to fly directly into international airports in the United States and be released on parole, which again entitled them to seek work authorization. By December 31, 2024, more than 117,000 Venezuelans were released under the CHNV program alone.

None of the Venezuelans who crossed illegally, who were encountered at the ports, and who came under CHNV received visas before they came here, which meant none of them were screened for criminal activity abroad before they arrived.

And because the United States has poor diplomatic relations with Caracas, the Venezuelan government wouldn’t pony up any derogatory information on those aliens, either.

That was a significant issue, because Venezuela is home to TdA, an organization whose business model is based on following migrant trails out of that country to expand its activities throughout the Americas, meaning the Biden migrant crisis now gave them entrée to the United States.

TdA apparently took the Biden administration up on its offer.

According to a February 2024 New York Post report, TdA was “sending its members to New York as part of the migrant wave — and using its sprawling criminal empire to launder the proceeds of the crimes”. The paper also cited TdA activity in Miami and a presence in Chicago.

The most high-profile TdA crimes, however, were occurring in Aurora, Colo., where TdA was alleged to have taken over three apartment complexes using violence, threats, and coercion, a strategy that soon spread to other cities across the United States. In August 2024, Aurora police received “a list of 120 vetted TdA members with the top five ‘shot callers’ at problem addresses”.

Then-candidate Donald Trump highlighted TdA and its U.S. crimes throughout the 2024 campaign, claiming Venezuelan President Nicolas Maduro was using Biden’s catch-and-release policies to send criminals and other bad actors — and TdA in particular — to the United States.

Note that President Biden’s Treasury Department designated TdA as a transnational criminal organization (TCO) in July 2024, the same day his State Department placed combined bounties of $12 million on the heads of three top TdA leaders. Despite that, many media outlets downplayed the threat posed by TdA.

TdA’s Terrorist Designation and Trump’s Alien Enemies Act Proclamation

Once back in office, now-President Trump vowed to remove TdA and its influence from this country.

To that end, 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.]

Accordingly, Trump in PP 10903 proclaimed 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 … and removed as Alien Enemies” under the AEA, an act passed in 1798 and now codified at 50 U.S.C. § 21.

That excerpted language closely tracks the text of the AEA, which states, in pertinent part:

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 … and removed as alien enemies.

Trump Flies TdA Members to El Salvador, and the Courts Respond

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 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), in which they argued they were “threatened with imminent removal under” PP 10903.

The plaintiffs asked to be considered part of a larger class of aliens who “were, are, or will be subject to” PP 10903 “and/or its implementation”, in a case was assigned to Chief Judge James Boasberg.

It should be noted that none of the named plaintiffs in that case, J.G.G. v. Trump, were actually on those flights, but nonetheless, late on March 15, Judge Boasberg issued a temporary restraining order (TRO) barring removals under the AEA for 14 days and ordering the government to turn those planes around.

That didn’t happen, triggering a cycle of accusations and recriminations between the judge and various administration officials.

On April 7, the Supreme Court issued its own order, vacating Judge Boasberg’s TROs in J.G.G.

A majority of the Court held that claims by alleged TdA members facing removal under the proclamation could only be brought in habeas proceedings heard by judges with jurisdiction over their places of detention. None of those aliens were being held in D.C.

That said, all of the justices concluded that those aliens have some right to review before removal, with the majority opinion finding that:

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

Nonetheless, on April 16, Judge Boasberg issued an order and opinion finding probable cause to hold government officials in contempt for transferring the aliens in the J.G.G. class to Salvadoran custody, allegedly in violation of his March 15 TRO.

On April 18, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit stayed that order pending appeal.

J.A.V. v. Trump

Many aliens facing removal under PP 10903 are allegedly being held in El Valle Detention Center in Raymondville, Texas. On April 9, two days after the Supreme Court issued its opinion, three of them — identified as “J.A.V.”, “J.G.G.”, and “W.G.H.” — filed a petition for writ of habeas corpus in U.S. District Court for the Southern District of Texas, in a case captioned J.A.V. v. Trump.

That same day, district Judge Fernando Rodriguez issued a TRO in J.A.V., blocking the government from moving those three aliens — “or any other person” the government claims is removable under PP 10903 — from El Valle before April 23. That case is currently pending.

A.A.R.P. v. Trump

Which brings me to A.A.R.P., the case that the justices weighed in on so early on Saturday morning.

On April 16, two Venezuelan nationals allegedly facing removal under the AEA, “A.A.R.P.” and “W.M.M.”, filed a “Class Petition for Habeas Corpus and Complaint for Declaratory and Injunctive Relief” on their own behalf and on behalf of a proposed class consisting of all aliens “in custody in the Northern District of Texas who were, are, or will be subject to” PP 10903.

Those aliens are being held at the Bluebonnet Detention Center in Anson, Texas, not El Valle, and Bluebonnet is within the jurisdiction of the U.S. District Court for the Northern District of Texas (N.D. Texas), where that petition was filed.

Both of these aliens are in removal proceedings under section 240 of the Immigration and Nationality Act (INA), a different process than removal under the AEA. A.A.R.P.’s next hearing is scheduled for April 28 at the Fort Snelling, Minn., Immigration Court, while W.M.M. is set to appear in immigration court in Louisiana on August 22.

A.A.R.P. was transferred, however, from a county jail in Minnesota to Bluebonnet on April 14, while W.M.M. spent a month in detention in Louisiana before he also was sent to Bluebonnet on April 14.

Despite their pending removal proceedings, both claim they are concerned that they are facing removal under PP 10903.

On April 17, Judge James Wesley Hendrix of the N.D. Texas denied the duo’s request for a TRO, finding no reason to conclude the government would not allow them to have judicial review prior to removal under the AEA, as the Supreme Court ordered and the government agreed to in J.A.V., and therefore deferred ruling on their request to certify the class.

On the evening of April 18, the pair, through counsel, filed an Emergency Application with Justice Alito as the circuit justice for the Fifth Circuit, asking the High Court for “a stay of removal and an immediate administrative stay to preserve the status quo for individuals challenging their removal under the” AEA in the N.D. Texas.

They alleged that:

Members of the proposed class are in imminent and ongoing jeopardy of being removed from the United States without notice or an opportunity to be heard, in direct contravention of this Court’s order in [J.G.G.]. Many individuals have already been loaded on to buses, presumably headed to the airport. Because of this ongoing and imminent risk of removal to a prison in El Salvador, Applicants are simultaneously seeking relief through a renewed application for a temporary restraining order in the district court in the District of Columbia and an application for a stay of removal in the U.S. Court of Appeals for the Fifth Circuit.

In an unusual (to say the least) move, the Court bypassed Justice Alito and issued its order in the wee hours of Saturday. That order states, in pertinent part:

The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.

You can trust me when I say that it’s an open question whether this case qualifies for class certification under Rule 23(b) of the Federal Rules of Civil Procedure, hence the Court’s reference to the “putative class”.

Here’s my take: The Supreme Court is waiting for a court (likely Judge Rodriguez), to rule on whether the Trump administration has the power to remove alleged TdA members under the “invasion or predatory incursion” clause of the AEA.

That ruling, of course, could be appealed by either of the parties, at which point a circuit court (likely the Fifth Circuit) would rule on the matter.

At this point, the justices are sailing in uncharted waters because they haven’t yet had an opportunity to weigh in on the substantive claims and there are no other opinions they can rely on.

Until that happens, don’t expect any additional aliens to be removed as TdA members under PP 10903 or the AEA. This order only applies to aliens in the jurisdiction of the N.D. Texas, but as noted, Judge Rodriguez already has AEA cases bottled up in the Southern District court for the time being.

Finally note that Justices Alito and Thomas dissented in A.A.R.P., with the former promising to issue a statement further explaining his reasons. That will truly be an enlightening document; the only question is whether he can subsequently get Justice Thomas and at least three others to later agree.

The key takeaway is that it’s unlikely the Trump administration will fly any more alleged TdA members out of the United States under the Alien Enemies Act until at least one judge, and likely several others, sets the rules for those removals. Stay tuned, because that ruling could come at any time of the day or night.