At the outset, the plaintiffs say, the obscure 18th-century wartime authority “cannot be used” in the absence of an “invasion or predatory incursion” conducted by a “foreign nation or government.”
And, the motion argues, the government has since violated the law itself, ignored and misinterpreted relevant precedent, and put forward a framework for challenging removal that reads almost as Kafkaesque.
The Trump administration, so far, has invoked the AEA to justify mass deportations of members of one particular Venezuelan gang. In the executive order underlying the litigation, Trump called for the removal of “all Venezuelan citizens 14 years of age or older who are members” of Tren de Aragua (TdA), which has been designated as a foreign terrorist organization since January.
On March 15 , the ACLU sued for and won a temporary restraining order. Action has since been quick, steady, and tense: a bench ruling to stop removals under the auspices of the AEA — which included a directive to turn planes around containing Venezuelan immigrants — was infamously ignored . The government appealed to the U.S. Circuit Court for the District of Columbia and earlier this week lost . On Friday, Acting Solicitor General Sarah Harris docketed the government’s case with the U.S. Supreme Court.
Motions practice at the district court level has continued apace.
In its Friday filing, the ACLU says the Trump administration’s own actions, admissions, and in-court legal theories show “a preliminary injunction is warranted to preserve the status quo.”
To start, the filing argues, immigration officers made multiple mistakes when trying to root out TdA members.
“Whether most (or perhaps all) of the class members lack ties to TdA remains to be seen, because the government secretly rushed the men out of the country and has provided Plaintiffs with no information about the class,” the motion reads. “But evidence since the flights on March 15 increasingly shows that many class members removed to El Salvador are not ‘members’ of TdA as is required to fall within the Proclamation; many have no ties to TdA at all.”
In at least three such instances, the government asserted false TdA affiliations based on misinterpreted tattoos, the ACLU argues.
One class member, “a professional makeup artist who identifies as gay,” was deported after the government “apparently relied solely on two crown tattoos for a connection to TdA.” Those tattoos actually “accompany the words ‘Mom’ and ‘Dad’ [and] have nothing to do with the TdA and reflect his work as a makeup artist for beauty pageants and his hometown’s association with the ‘Three Kings’ festival,” according to the motion.
In the second instance, a professional soccer player with a tattoo “similar to the logo for his favorite soccer team, Real Madrid,” was deported, the motion continues. In the third instance, a man with a tattoo of “an autism awareness ribbon with the name of his brother, who is autistic, on it” and “was told by ICE officers that they picked him up because of his tattoos.”
“While these errors would be troublesome in any case, they are particularly devastating here,” the motion reads.
The government has highly-publicized the fact that some of the deportation flights were bound for a notorious prison in El Salvador.
Such admissions, the ACLU says, underscore the severity of making sure the Trump administration does not fill another plane.
“In the absence of preliminary relief, Plaintiffs can be summarily removed to places, such as El Salvador, where they face life-threatening conditions, persecution and torture,” the motion reads. “Prison officials there engage in widespread physical abuse, including waterboarding, electric shocks, using implements of torture on detainees’ fingers, forcing detainees into ice water for hours, and hitting or kicking detainees so severely that it causes broken bones or ruptured organs. People in detention in El Salvador also face psychological harm, including solitary confinement in pitch dark cells or being forced to stay in a cell with the body of a fellow prisoner who was recently beaten to death. In fact, El Salvador creates these horrific conditions intentionally to terrify people.”
As for the errors themselves, the ACLU says they are of a piece with how the government has prosecuted this case from the start.
“The government’s errors are unsurprising, given the methods it is employing to identify members of TdA,” the motion goes on. “The ‘Alien Enemy Validation Guide’ that, upon information and belief, the government is using to ascertain alien enemy status, requires ICE officers to tally points for different categories of alleged TdA membership characteristics.”
That guide, the motion explains, assigns a certain number of points for things like tattoos and hand gestures that showcase a TdA affiliation. But, the motion argues, citing TdA experts, the gang has never used tattoos or hand gestures to signify allegiance or membership.
The government’s legal defense of its behavior after the fact fare no better, the ACLU says.
In various motions — including its application for an emergency stay with the nation’s high court — the government says the plaintiffs filed their lawsuit using the wrong law in the wrong court.
In its original petition, the ACLU chose the Administrative Procedure Act (APA) and sued in Washington, D.C. — the court system focused on administrative law. Rather, the Trump administration says, the proper channel was a writ for habeas corpus filed in Texas — where the deportation flights left the country.
This premise is not sound, the plaintiffs say, due to the law itself and the facts of the case applied to the would-be use of habeas writs.
“Defendants ignore the Supreme Court and D.C. Circuit’s long line of cases differentiating between ‘core’ and ‘non-core’ habeas claims,” the motion argues.
To hear the ACLU tell it, the relevant precedent on habeas holds that only a person seeking literal “release” from administrative detention must file a habeas claim — the so-called “core” of the writ.
“[H]ere, Plaintiffs are not seeking release,” the motion continues. “Thus, Plaintiffs can bring ‘non-core’ habeas claims that do not seek release through other types of actions.”
In other words, the Trump administration claims the ACLU had to use one particular legal strategy in the case; the ACLU says that strategy could be used but is not mandatory.
More to the point, the ACLU says that a habeas strategy would be effectively worthless — and that the government has admitted this.
From the motion, at length:
Finally, and in any event, the government’s suggestion that every individual, even those who are unrepresented (the overwhelming majority), could file an individual habeas is, at best, illusory. As demonstrated above, the government is not providing any advance notice of an individual’s designation as an alien enemy, let alone providing time to file a habeas action and obtain a stay of removal. The notice form that it may be using — which no Plaintiff has reported receiving — says there is no form of review available. Moreover, the government has complete control over where it detains and transfers people, and transfers of class members have occurred swiftly (and without notice to counsel in the few cases where there is counsel). The reality is that, if forced to pursue their claims in habeas, Plaintiffs will face insurmountable hurdles to obtaining judicial review over the lawfulness of Defendants’ actions. The government has already admitted as much.
The motion goes on to cite an appellate judge’s summary of what U.S. Department of Justice lawyers say their immediate goal in the case is.
“The government’s position at oral argument was that, the moment the district court TROs are lifted, it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal,” U.S. Circuit Judge Patricia Millett wrote.
In any event, the plaintiffs’ motion argues, the government’s chosen method of deportation is in violation of the AEA itself.
“Because the government is currently providing no process or opportunity to contest a designation, the precise contours of such review need not be determined here,” the motion continues. “At this stage, even assuming the Court finds that the AEA can be used at all against a ‘gang’ during peacetime, the Court need only hold that the current Proclamation is unlawful in failing to provide any process, even sufficient notice and opportunity to file the individual habeas petitions held out by the government.”
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