Justice Department Ignored Procedural Requirements of the Alien Enemies Act

Decision by Judge Hellerstein Enters Preliminary Injunction Against Deportations Without Following Requirements of the AEA and Due Process

President Trump was apparently told by Attorney General Pam Bondi and other attorneys at the Justice Department that he could deport Venezuelans to the CECOT Terrorism Prison in El Salvador, under the Alien Enemies Act, by claiming that they were members of Tren de Aragua (TdA) and that TdA was engaging in an invasion or predatory incursion into the United States on behalf of the Maduro regime in Venezuela. The DOJ told Trump that he could deport these Venezuelans without a hearing or judicial review of any kind. Trump was also told by DOJ attorneys that he did not have to follow the procedures under the Immigration and Nationalities Act for deporting persons who had illegally entered the United States from Venezuela.

Trump was apparently delighted with this “legal advice” as it allowed him to expedite deportations which he felt were going too slowly. According to news reports, the Trump Administration began in early March to organize these deportations of Venezuelans to the CECOT prison in El Salavador.

On March 15, 2025 the Trump Administration, after rounding up a number of Venezuelans who had entered the country illegally, loaded them on two airplanes in Texas and began flying them to El Salvador. This was done as a stealth operation without advance notice to the deportees. Litigation was filed on behalf of five of the deportees in the federal court for the District of Columbia, and Chief Judge Boasberg entered a Temporary Restraining Order against the deportations to CECOT and requiring the planes to turn around and return to the United States. The Trump Administration ignored the TRO and flew the aliens to Honduras and then to El Salavdor where they were transferred to custody of the El Salavador authorities and incarcerated at CECOT.

On that same day, another group of Venezuelans were loaded on to a plane in Texas to be sent to El Salvador, but after Judge Boasberg’s TRO was entered, at least two of the persons on the third plane were taken off the plane and then returned to the Orange County Jail in New York. Still under threat of deportation, they filed a Petition for a Writ of Habeas Corpus relief in the Southern District of New York. Their case was assigned to Judge Alvin Hellerstein. On April 9, 2025, Judge Hellerstein entered a TRO against the Trump Administration preventing their removal from the United States without notice and hearing pending further order of the Court.

On April 7, 2025 the Supreme Court held in Trump v. T.G.G., 145 S. Ct. 1003, 1006 (2025) that people could not be deported under the Alien Enemies Act without procedural due process of notice and hearing on the charges or reasons for the proposed deportation as required by the Due Process Clause of the Fifth Amendment.

After certifying a class of anyone in the Southern District of New York subject to deportation under the Presidential Proclamation against TdA who had not been provided notice and hearing, Judge Hellerstein entered a preliminary injunction on May 6, 2025 against removal of the Petitioners and the class without compliance with the terms of the Alien Enemies Act, 50 U.S.C. sec. 21-23.

What is important about Judge Hellerstein’s decision is that he undertook a careful analysis of the actual text of the Alien Enemies Act and concluded that the Trump Administration had not followed the procedural requirements for fact finding determinations by a federal court before someone could be deported under the AEA.

The Presidential Proclamation issued by President Trump on March 15, 2025 invoked his authority under the 1798 Alien Enemies Act to “detain and deport suspected members of TdA.” The Court said “Respondents cite only the section of the AEA that grants power to the President to ‘apprehend, secure, restrain’ and remove aliens ‘when invasion or predatory incursion is perpetrated. attempted or threatened against the territory of the United States by any foreign nation or government.“ 50 U.S.C. sec.1.

But the Court went on to state, “Conveniently, Respondents fail to mention another section of the AEA that imposes a “duty” on the federal courts to give a “full examination and hearing” to the Executive’s complaint against the alien, and to order the alien’s removal only upon “sufficient cause appearing.” 50 U.S.C. sec. 23:

After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

Judge Hellerstein said that Section 23 imposes a duty on the federal courts to “hold a full examination and hearing on such complaint” of the Executive. “ “[A]n 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.’” J.G.G., 145 S. Ct. at 1006.

The President then can “provide for the removal” of the alien. Id. But the Executive must do so by filing a “complaint” before an Article III court. 50 U.S.C. § 23. The court then has the “duty” to conduct a “full examination and hearing,” to determine if “sufficient cause” exists and, if it does, to order such alien to be removed. Id. The complaint serves as the notice to the alien.

The Complaint “It is not a bare bones form letter. The notice must advise the alien of the acts he committed that justify his removal.”

The notice proposed by Respondents does not moot this issue. Petitioners have not been given notice of what they allegedly did to join TdA, when they joined, and what they did in the United States, or anywhere else, to share or further the illicit objectives of the TdA. Without such proof, Petitioners are subject to removal by the Executive’s dictate alone, in contravention of the AEA and the Constitutional requirements of due process. …

Here, the private interests of Petitioners to protect their liberty and not to be deported to CECOT for indefinite detention are exceptionally strong. See Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020) (the private interest of an alien in being free from imprisonment “is the most significant liberty interest there is”). And the risk of erroneous deprivation of an alien’s liberty interest, without a “full examination and hearing” following the filing of a complaint by the Government, as required by the AEA, is great. Indeed, the summary procedures used by Respondents have already resulted in the wrongful removal of at least two individuals to CECOT. See Noem v. Abrego Garcia, No. 24A949, 2025 WL 1077101, at *1 (April 10, 2025); J.O.P. v. U.S. Dep’t of Homeland Security, 19 Civ. 1944, 2025 WL 1180191, at *7 (D. Md. Apr.23, 2025).

The Court reviewed various dictionary definitions of incursion and invasion.

Accordingly, I hold that the predicates for the Presidential Proclamation, that TdA has engaged in either a “war,” “invasion” or a “predatory incursion” of the United States, do not exist. Others courts have resolved this issue similarly. See, e.g., J.G.G. v. Trump, No. 25-5068, 2025 WL 914682, at *8-10 (D.C. Cir. Mar. 26, 2025) (Henderson, J., concurring); J.A.V. v. Trump, 25 Civ. 72, 2025 WL 1257450, at *12-18 (S.D. Tex. May 1, 2025); D.B.U. v. Trump, 25 Civ. 1163, 2025 WL 1163530, at *9-11 (D. Col. Apr. 22, 2025). There is nothing in the AEA that justifies a finding that refugees migrating from Venezuela, or TdA gangsters who infiltrate the migrants, are engaged in an “invasion” or “predatory incursion.” They do not seek to occupy territory, to oust American jurisdiction from any territory, or to ravage territory. TdA may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion.

The Court entered a Preliminary Injunction against enforcement of Trump’s Proclamation in the Southern District of New York.

What is most important about Judge Hellerstein’s decision is his putting into effect the terms of the 1798 AEA including requiring the Executive to present a Complaint detailing the facts concerning the alleged alien enemy and imposing the duty on the federal courts to hold full and complete hearings on the complaints against the aliens.

The Trump Administration ignored the requirements of Section 23 and spirited to El Salvador those Venezuelans it had detained and transferred to the ICE facility in Texas without filing and serving a complaint with specific facts on how the government determined the individual was a member of TdA and what the person allegedly did in support of TdA.

Trump has complained that the court decisions are requiring hearings for everyone they want to deport under the AEA, and he says that could amount to millions of hearings. That is a gross exaggeration.

But Trump should complain to Attorney General Bondi that she and the DOJ attorneys did not advise Trump that the AEA required hearings before deportation. Trump complained the courts were imposing a new requirement, but the notice and hearing provisions of the AEA were in the statute since 1798.

This highlights the problem when the Attorney General and the DOJ attorneys act as enablers of the President’s desires rather than providing true legal advice on the requirements of the AEA that they decided to use.

If DOJ and AG Bondi advised Trump that he could deport people under the AEA without any advance notice and hearings, he got very bad legal advice. If the AG and DOJ act like sycophants for the President telling him whatever he wants to hear, rather than giving truly professional legal advice, that only results in a lawless presidency.