The ACLU Has Filed for a Preliminary Injunction in the Alien Enemies Act Case

As the Trump regime continues to defy Judge Boasberg's orders to return Venezuelans deported without due process, the plaintiffs seek a preliminary injunction.

Last night, the plaintiffs in the Alien Enemies Act case filed their motion for a preliminary injunction after Judge Boasberg renewed the Temporary Restraining Orders he issued March 15th when he ordered the planes back to the United States. Extending the Temporary Restraining Orders gives the plaintiffs time to get a more permanent (and appealable) preliminary injunction. This is separate from Judge Boasberg’s efforts to determine whether the Trump regime is in contempt of court for defying his orders. The contempt issue will be fully briefed March 31st.

Plaintiff’s motion for a preliminary injunction was due March 28th. Trump’s response is due April 1st, and the plaintiffs’ reply is due April 4th. Boasberg has scheduled a hearing on the preliminary injunction for April 8th.

The plaintiff’s 53-page motion for a preliminary injunction comes with 19 exhibits - declarations from immigration attorneys, detainees, and family members. All evidence showing that the Trump administration provided zero due process to the deportees.

Starting with the summary in the motion for a preliminary injunction:

The unprecedented Proclamation at the heart of this case is unlawful because the Alien Enemies Act is a wartime measure that cannot be used where, as here, there is neither an “invasion or predatory incursion” nor such an act perpetrated by a “foreign nation or government.” And even if it could be used against a non-military criminal “gang” during peacetime, targeted individuals must be provided with a meaningful chance to contest that they fall within the Proclamation’s scope. That is particularly so given the increasing number of class members who dispute the government’s allegations of gang affiliation. For these and other reasons, Plaintiffs are likely to succeed on the merits. The remaining factors also decidedly tip in Plaintiffs’ favor. In the absence of an injunction, the government will be free to send hundreds more individuals, without notice, to the notorious Salvadoran prison where they may be held incommunicado for the rest of their lives. The government will suffer no comparable harm given that this Court has not prohibited it from prosecuting anyone who commits a criminal offense, detaining anyone under the Act or other authority, or removing anyone under the immigration laws, and the government has already conceded that some form of judicial review is appropriate. A preliminary injunction is warranted to preserve the status quo.

As you can see, there are multiple arguments in this summary to support a preliminary injunction based on the factors the court must weigh to issue one. To obtain a preliminary injunction, the party must show that (1) it is “likely to succeed on the merits”; (2) it is “likely to suffer harm in the absence of preliminary relief”; (3) “the balance of equities tips in its favor”; and (4) the issuance of a preliminary injunction is “in the public interest.” First, the petitioner has to show that they’re likely to win on the merits. The arguments here are straightforward. First, the Alien Enemies Act proclamation issued by Trump is unlawful because we’re not at war. As Judge Millet pointed out during oral arguments over whether the appeals court would vacate Boasberg’s TROs - Germans living in America during WWII were afforded hearings so they could dispute their affiliation with the Nazis. In this case, there is more than enough evidence to show that class members weren’t afforded any due process. That’s what the 19 declarations are about: supporting the argument that the plaintiffs are likely to succeed on the merits.

In the past two weeks, more details have begun to emerge. Named Plaintiffs received no advance notice of the basis for their removal. They were never given any paperwork. Indeed, no government officers bothered to inform them that the plane they were boarding was headed to El Salvador. The government suggests they provided individuals with a notice form that asserts the men are alien enemies and pointedly states that they are “not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal.” But Plaintiffs and other class members received no such notice. Their immigration attorneys were never informed or notified of their impending deportation or the basis for the removal.

In other words, while the Trump administration claims that they gave deportees notice, they clearly did not. The petitioners then provide specific examples, citing the corresponding exhibits filed under penalty of perjury:

For instance, one of the deported class members, Andry Jose Hernandez Romero, is a professional makeup artist who identifies as gay and never had an opportunity to contest the government’s Tren de Aragua (TdA) allegations. While in detention he was tagged as a TdA associate based solely on his tattoos. Specifically, the government has apparently relied solely on two crown tattoos for a connection to TdA, having found no contact with gang members, no supporting evidence from intelligence agencies, or any other of its own indicators. Mr. Hernandez Romero has consistently denied affiliation with TdA, as the government’s own records show, his crown tattoos, which accompany the words “Mom” and “Dad,” 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. Yet, he was subject to the Proclamation and deported without any notice to him or his attorney. Two days later, at his court hearing, his attorney learned for the first time of his removal. Even then the government’s attorney did not know the basis for removal.

Here’s another:

Another deported class member, Jerce Reyes Barrios, was accused of being in TdA based on a tattoo of a soccer ball with a crown. But Mr. Reyes Barrios is a professional soccer player, and the tattoo is similar to the logo for his favorite soccer team, Real Madrid. Moreover, the government pointed to a social media post where Mr. Reyes Barrios made a common hand gesture that means “I love you” in sign language. But Mr. Reyes Barrios was never given the opportunity to explain this because he was removed prior to his immigration hearing, which was set for just over a month after the government deported him.

And a third:

Yet another deported class member, Neri Alvarado Borges, was told by ICE officers that they picked him up because of his tattoos—one of which was an autism awareness ribbon with the name of his brother, who is autistic, on it. While the ICE agent who inspected his tattoos and his phone said he had nothing to do with Tren de Aragua, the Dallas ICE Field Office decided to keep Mr. Alvarado Borges in detention. Mr. Alvarado Borges’s U.S.-citizen boss was stunned to hear that his employee—someone who he described as a “stand-up guy” and one of his few close friends—had been detained and ultimately deported.

The plaintiffs then reveal the “guide” the Trump administration is using to determine whether someone is an “Alien Enemy” is based on a points system.

The government’s errors are unsurprising, given the methods it is employing to identify members of TdA. 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. If an individual is given a score of 8 points, he is automatically deemed an “alien enemy;” six or seven points requires supervisor approval to label the individual a TdA member. But experts have cast serious doubt on the checklist’s methodology. For example, the checklist gives four points for “tattoos denoting membership/loyalty to TDA,” but experts who study TdA explain that the gang “has never had . . . identity marks such as tattoos that identify its members.” The scoring system also gives between two to four points for the use of hand gestures, symbols, logos, graffiti, or manner of dress but experts say these are also unreliable ways to identify TdA members. And there is no evidence that TdA has a constitution or membership certificate—which is worth six points on the checklist.

That’s right. TdA doesn’t use hand gestures, tattoos, or membership certificates.

You can read the entire motion for preliminary injunction here. As stated earlier, the government’s reply is due April 1st, the plaintiffs’ response is due April 4th, and the hearing is April 8th.

As far as the contempt portion of the case, we will get the plaintiffs’ reply to the Trump administration’s response to the show cause order on March 31st.

~AG