On Friday, the Trump administration appeared to start the process of carrying out the deportation of Venezuelan nationals pursuant to the Alien Enemies Act, a wartime authority that legal experts warn is clearly not applicable to those individuals.
The Act requires invocation of its authorities to be made public, but as of the time of publication there is no indication that a presidential proclamation has been publicly released. CNN has reported, however, that President Donald Trump was set to issue such a proclamation as soon as Friday and described senior White House officials stating that the executive action would target Venezuelan nationals alleged to be affiliated with the Tren de Aragua gang.
In the early hours of Saturday, the American Civil Liberties Union (ACLU) and Democracy Forward filed suit challenging the government’s action on the ground that the Alien Enemies Act does not provide authority for such removals. The groups also submitted an emergency application for a temporary restraining order (see also proposed TRO and other documents on Pacer).
Immigration attorneys for other Venezuelan migrants in ICE custody have also filed lawsuits to block their clients’ removal in the past several hours.
One Venezuelan man in ICE custody was transferred by immigration authorities to Harlingen, Texas for deportation, even though he did not have a removal order against him. He told government agents that he was not subject to a removal order and had been in the process of requesting bond, according to his legal counsel. An ICE agent responded that he was being deported on order of the president, according to the lawyers. The ICE agent also told the Venezuelan man that even if he did not sign a voluntary departure order, ICE officials would sign for him and that the order from the president is “to deport them all,” according to a court filing.
The man’s legal counsel filed a habeas petition soon after midnight local time alleging that the ICE agents said their client would be removed from the United States on Saturday.
On Friday morning, government agents had been preparing the man and other detained individuals at the immigration center to board an airplane for removal from the United States, according to the court filing. But he was informed that technical issues with the plane caused a delay. He was later told to be prepared to board a flight very early the next day (March 15).
Other Venezuelan migrants already in detention were also sent to the ICE detention center in Texas in the past twenty-four hours, with the expectation that they would be removed from the country. At least one individual, who has received Temporary Protected Status to remain in the United States, succeeded in obtaining a temporary restraining order from a federal court blocking his removal. He told his attorneys that he had spoken to other individuals with Temporary Protected Status who were also detained and being prepared for deportation. His attorneys sent an email message to the U.S. Attorney saying that, given the restraining order, the government should not remove other individuals who hold TPS status.
The ACLU and Democracy Forward suit includes, among its plaintiffs, “four Venezuelan men in immigration custody threatened with imminent removal” held in the El Valle Detention Facility.
The use of the Alien Enemies Act is not consistent with the text of the statute or past U.S. practice dating to the WWII era (the last time it was invoked) and earlier, according to legal experts. According to its text, the Act applies only when there is a “declared war between the United States and any foreign nation or government” or an “invasion” perpetrated “against the territory of the United States by any foreign nation or government.”
“The constitutional text makes clear that invasion refers to an actual attack,” wrote Ilya Somin, a law professor at the Antonin Scalia Law School at George Mason University. “The absurdity” of the administration’s position “becomes even more clear when we recall that the invasion provisions of the Constitution – especially the Guarantee Clause – were understood to protect not only against foreign invasion, but against invasions of one state by another.” It is unclear how the administration could lawfully assert that the Venezuelan gang could constitute a “foreign nation or government” for purposes of the Act.
In the lead up to Friday’s actions, the New York Times reported that the administration’s plan was to remove some of the alleged members of the Venezuelan gang to Guantanamo.
For additional reading and analysis on the legal issues:
Elizabeth Goitein and Katherine Yon Ebright, Trump’s Doubly Flawed “Invasion” Theory: The president is wrong about what an invasion is—and what powers it triggers (Feb. 19, 2025)
William Banks, What Just Happened: The Framing of a Migration “Invasion” and the Use of Military Authorities (Jan. 29, 2025)
Ilya Somin, What Just Happened: The “Invasion” Executive Order and Its Dangerous Implications (Jan. 28, 2025)
Elizabeth Goitein, Deployment of the U.S. Military for Immigration Enforcement: A Primer (Dec. 3, 2024)
Katherine Yon Ebright, What Should Courts do if a Future President Invokes the Alien Enemies Act to Deport Immigrants? (Feb. 27, 2024)
Frank O. Bowman, III, Immigration Is Not an “Invasion” under the Constitution (Jan. 29, 2024)