The White House’s use of the Alien Enemies Act to remove Venezuelans it has accused of being gang members is an abuse of war powers that critics say could open the door to mass deportations from a country President Trump has targeted multiple times in just a few months.
While accusations the White House violated a court order by flying 238 Venezuelans to a Salvadoran prison have generated significant attention, immigration and civil rights advocates say the deportations themselves are just as alarming.
The more than 100 Venezuelans deported for allegedly being in the Tren de Aragua (TdA) gang had no opportunity to contest the accusation and were shipped to a Salvadoran prison amid questions over whether the U.S. had legal authority to move them there.
Trump is also tapping the infrequently used Alien Enemies Act in a way never seen before, relying on gang membership, not armed conflict, to use the executive’s war powers to deport people.
Those sent to El Salvador include people who were being removed under existing immigration authorities, raising questions about why they were sent to a foreign prison.
The government is paying El Salvador $6 million to imprison all the deportees for a year.
“All of these individuals are already alleged to have been removable under normal immigration law. So we have a bunch of people that the United States already had in physical custody and that the United States already could deport under normal immigration law, that they have instead decided to essentially send to a prison in El Salvador to do hard labor, seemingly entirely on the basis of wanting to get some public relations work done,” Aaron Reichlin-Melnick, an attorney with the American Immigration Council, told The Hill.
“Under what authority is the U.S. government paying a foreign government to imprison and subject to hard labor individuals who have not been subject to normal immigration law proceedings or charged with any crime in the United States? I simply don’t see any legal authority for that. The Alien Enemies Act certainly doesn’t authorize it. Normal immigration law certainly doesn’t authorize it either.”
Civil rights advocates also have major concerns over Trump’s use of the Alien Enemies Act, which was most recently used as the basis for the internment of Japanese Americans during World War II.
“What we’re seeing is a president who is arbitrarily calling migration and narcotics trafficking acts of war and an invasion and predatory incursion without any actual basis or factual basis for doing so,” said Katherine Ebright, an expert in the Alien Enemies Act and attorney with the Brennan Center for Justice.
“This law was enacted pursuant to Congress’s constitutional war powers. It’s not an immigration statute. And so using a wartime authority that is manifestly for responding to armed attacks for peacetime immigration enforcement is as clear of a violation…as we’ve seen from this administration and perhaps any administration.”
The Trump administration has argued the Venezuelans were “terrorists.”
“We removed terrorists from the country this weekend,” border czar Tom Homan said Monday. “I can’t believe any media would question the president’s ability to remove terrorists from this country.”
Trump’s plans to use the Alien Enemies Act ignited a suit from several Venezuelans already in custody who have denied any connection with Tren de Aragua, which the administration often abbreviates as TdA.
A sworn statement from an official with U.S. Immigration and Customs Enforcement (ICE) notes that “many” of those removed on the flights do not have a criminal record in the U.S.
“That is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile,” Robert Cerna, an acting field office director with ICE, said in a sworn statement.
He added that many have been accused of crimes abroad while others are suspected of criminal activity in the U.S.
Ebright noted that the U.S. already has the power to push for deportations through regular immigration and court processes.
“What the Trump administration is hoping to do is bypass the due process protections that exist in peacetime law and in immigration law,” she said.
“The only reason to rely on the Alien Enemies Act is to bypass that process, to make any Venezuelan immigrant who the president deems to be or designates to be a member of Tren de Aragua without satisfactory evidence – make that person deportable,” she added.
“And it really does echo the World War II history, where we saw the president put 31,000 noncitizens of Japanese, German, and Italian descent into camps because he had ‘deemed them dangerous’ without evidence and without hearings.”
Reichlin-Melnick said it was “extraordinarily unlikely” that those deported would be able to challenge their removal from a Salvadoran prison.
“What we know for sure is that the U.S. government has not given any of these individuals an opportunity to challenge their claim that they are part of a gang,” he said – something that would have been possible while the group was still in ICE custody.
The treatment of the other 101 Venezuelan migrants deported on the flights has also gained scrutiny. That portion of the group was removed using Title 8 immigration authorities – a standard process, but one that has not been used to remove migrants to a foreign prison.
“Yes, some people can be deported to third countries, but I have never heard of a person being deported directly to a foreign prison where they are being held, allegedly on the U.S. demand,” Reichlin-Melnick said.
In just a few short weeks in office, the Trump administration has taken a number of actions seeking to roll back protections for Venezuelans.
In February, Department of Homeland Security Secretary Kristi Noem purported to end Temporary Protected Status (TPS), spurring a swift lawsuit from advocates who said she had no power to vacate the protection given by her predecessor. Laws governing TPS require analysis of various safety factors both for giving and rescinding the protections.
And Trump has also moved to end protections for Venezuelans as well as Cubans, Haitians, and Nicaraguans who were paroled into the country under the Biden admission.
Reichlin-Melnick called it a turnaround for Trump, noting that in his first term he gave protections known as Deferred Enforced Departure to some Venezuelans, citing repression under the Maduro regime.
“We are talking about more than half a million people. Many of them have been completely law-abiding after arriving in the United States, have followed every requirement of the United States, and have done nothing wrong,” Reichlin-Melnick said of the roughly 600,000 Venezuelans who immigrated to the U.S. in recent years.
“I think this is part and parcel of a broader effort to paint the United States as under siege from migrants and from immigrants.”
