A federal judge on Monday kept in place his ruling barring the Trump administration from using a powerful wartime statute to summarily deport a group of Venezuelan immigrants whom officials have accused of being members of a violent street gang.
In a 37-page order, the judge, James E. Boasberg, said the order should remain in place so that the Venezuelan immigrants could have the opportunity to challenge accusations that they belong to the gang, Tren de Aragua, before the Trump administration can fly them out of the country under the wartime law known as the Alien Enemies Act.
The Alien Enemies Act, Judge Boasberg wrote, “arguably envisions that those caught up in its web must be given the opportunity to seek such review.”
Judge Boasberg, who serves as the chief judge of the Federal District Court in Washington, issued an initial order on March 15 temporarily barring the administration from using the act to deport scores of Venezuelans to a prison in El Salvador with little or no due process.
While Mr. Trump and his allies have accused Judge Boasberg of overstepping his authority by intruding on the president’s prerogative to conduct foreign affairs, the question at the heart of the case is whether Mr. Trump himself overstepped by ignoring several provisions laid out in the text of the act for how the deportations should be handled.
The act, which was passed in 1798, gives the government wide latitude during an invasion or a time of war to summarily round up subjects of a “hostile nation” who are over the age of 14, and remove them from the country as “alien enemies.”
The administration has repeatedly claimed that the Venezuelan immigrants in question are members of Tren de Aragua and should be considered subjects of a hostile nation because they are closely aligned with the Venezuelan government. The White House has also insisted that the arrival to the United States of dozens of members of the gang constitutes an invasion.
But lawyers for the deported Venezuelans argue that their clients are not gang members at all and should have the opportunity to prove it. The lawyers also maintain that while Tren de Aragua may be a dangerous criminal organization, it is not a nation-state. Even if the group’s members have come to the United States en masse, they say, that does not fit the traditional definition of an invasion.
In his order, Judge Boasberg said that he was not yet issuing a ruling on the “complicated legal issues” of whether Tren de Aragua should be defined as a hostile nation or whether the phenomenon of immigrants crossing the border could be construed as an invasion.
For the moment, he said, he was keeping his order in place solely to ensure that the Venezuelans whom Mr. Trump wants to deport have a chance to challenge whether they are even subject to the Alien Enemies Act in the first place.
“It follows that summary deportation following close on the heels of the government’s informing an alien that he is subject to the proclamation — without giving him the opportunity to consider whether to voluntarily self-deport or challenge the basis for the order — is unlawful,” Judge Boasberg wrote.
This afternoon, a federal appeals court in Washington is set to hold its own hearing that is likely to cover many of the same subjects Judge Boasberg dealt with in his order. The Justice Department has asked the appeals court to stay the judge’s underlying ruling as it considers whether to reverse it.
In a separate but related dispute, Judge Boasberg has given the department until Tuesday to decide if it intends to invoke a rare doctrine called the state secrets privilege in an effort to get around providing the judge with detailed information about two deportation flights that traveled to El Salvador this month.
Judge Boasberg is trying to determine if the administration let the flights continue on their way in violation of an oral ruling he made from the bench instructing them to turn around.
At least for the moment, the judge’s energy is likely to be focused on the question of whether the Venezuelan immigrants are members of Tren de Aragua.
The administration has provided only limited information tying the immigrants to the gang. In one recent filing, the Justice Department acknowledged that several of the people suspected of being in the gang did not have criminal records in the United States mostly because they had not been in the country very long.
And even as the administration noted what few details it had about the deportees, it made the unusual conclusion that it pointed to a risk, not a lack of one.
“The lack of specific information about each individual actually highlights the risk they pose,” an immigration official wrote in a filing. “It demonstrates that they are terrorists with regard to whom we lack a complete profile.”
Lawyers for the immigrants have said that at least five of them who were flown without due process to El Salvador were apprehended in part because they had tattoos that federal immigration agents claimed indicated ties to Tren de Aragua.
But the lawyers said that one of the men got his tattoo — of a crown sitting atop a soccer ball — because it resembled the logo of his favorite soccer team, Real Madrid. Another got a similar crown tattoo, the lawyers said, to honor the death of his grandmother.
