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This matter concerns the detention and removal of Venezuelan nationals believed to be members of Tren de Aragua, or TdA, an entity that the Department of State has designated as a foreign terrorist organization.
President Donald Trump issued Proclamation No. 10903, invoking the Alien Enemies Act to detain and remove Venezuelan nationals “who are members of TdA.” Five detainees and a putative class sought injunctive and declaratory relief against the implementation of, and their removal under, the proclamation. Initially, the detainees sought relief in habeas among other causes of action, but they dismissed their habeas claims.
On March 15, the District Court for the District of Columbia issued two temporary restraining orders preventing any removal of the named plaintiffs and preventing removal under the AEA of a provisionally certified class consisting of “[a]ll noncitizens in U.S. custody who are subject to” the proclamation.
On March 28, the district court extended the TROs for up to an additional 14 days.
The D.C. Circuit denied the government’s emergency motion to stay the orders. The government then applied to the U.S. Supreme Court, seeking vacatur of the orders and the high court construed the TROs as appealable injunctions. The court granted the application and vacated the TROs.
The detainees sought equitable relief against the implementation of the proclamation and against their removal under the AEA. They challenged the government’s interpretation of the act and asserted that they do not fall within the category of removable alien enemies. But the Supreme Court didn’t reach those arguments.
In an unsigned April 7 opinion, it explained that challenges to removal under the AEA, a statute that largely precludes judicial review, must be brought in habeas. It reasoned that regardless of whether the detainees formally request release from confinement, because their claims for relief necessarily imply the invalidity of their confinement and removal under the AEA, their claims fall within the core of the writ of habeas corpus and must be brought in habeas.
The high court added that immediate physical release is not the only remedy under the federal writ of habeas corpus. For core habeas petitions, the Supreme Court clarified that jurisdiction lies in only one district: the district of confinement.
The detainees are confined in Texas, so the court stated that the venue is improper in D.C. As a result, it found the government is likely to succeed on the merits of this action.
The detainees also sought equitable relief against summary removal. Although judicial review under the AEA is limited, the Supreme Court has held that an individual subject to detention and removal under that statute is entitled to judicial review as to questions of interpretation and constitutionality of the act as well as whether they are in fact an alien enemy 14 years of age or older.
The detainees’ rights against summary removal, however, are not currently in dispute, the court wrote. The government expressly agrees that TdA members subject to removal under the act get judicial review.
The Supreme Court found that it’s well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings. So, the detainees are entitled to notice and opportunity to be heard appropriate to the nature of the case.
More specifically in this context, the high court ruled that AEA detainees must receive notice after the date of this order that they are subject to removal under the act. The court noted that notice must be afforded within a reasonable time and in such a manner as to allow them to actually seek habeas relief in the proper venue before such removal occurs.
The application to vacate the orders of the District Court for the District of Columbia presented to Chief Justice John Roberts Jr. and by him referred to the court was granted. The March 15 minute orders granting a temporary restraining order and March 28 extension were vacated.
Justice Brett Kavanaugh filed a concurring opinion. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, and Justice Amy Coney Barrett joined as to Parts II and III–B, filed a dissenting opinion.
“Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed,” Sotomayor wrote in the dissent. “That should have been the end of the matter.”
The dissenting justices asserted that the matter had only bare-bones briefing, no argument and very little time for reflection.
“The Court’s legal conclusion is suspect,” Sotomayor wrote. “The [court] intervenes anyway, granting the [government] extraordinary relief and vacating the [district court’s] order on that basis alone. It does so without mention of the grave harm [plaintiffs] will face if they are erroneously removed to El Salvador or regard for the [government’s] attempts to subvert the judicial process throughout this litigation.”
Part II of the dissent, the justices agreed with the per curiam’s ruling that the Fifth Amendment requires the government to afford notice for such removal actions. “That means, of course, that the [government] cannot usher any detainees, including plaintiffs, onto planes in a shroud of secrecy, as it did on March 15,” Sotomayor wrote. “Nor can the [government] ‘immediately resume’ removing individuals without notice upon vacatur of the TRO, as it promised the D.C. Circuit it would do.”
Part III–B of the dissent questions the court’s decision to vacate the district court’s order on the ground that an individual’s challenge to removal under the act falls within the core of the writ of habeas corpus and must be filed where the plaintiffs are detained. They assert the conclusion is dubious for various reasons.