On April 7 in Trump v. J.G.G., the U.S. Supreme Court unanimously held that foreign nationals who allegedly are subject to immediate deportation as "alien enemies" have a due process right to contest that designation. But where does that leave deportees who were denied that opportunity before they were peremptorily shipped off to prison in El Salvador last March? A preliminary injunction that a federal judge granted on Wednesday supplies an answer: The Trump administration "must facilitate [their] ability" to file habeas corpus petitions and "ensure that their cases are handled as they would have been if the Government had not provided constitutionally inadequate process."
James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, does not get more specific than that. Cognizant of the "sensitive diplomatic or national-security concerns" raised by interactions between the U.S. government and the Salvadoran officials who are imprisoning deportees at its behest, he invites the Trump administration to "propose" how it will comply with his order. But his decision underlines the importance of due process, the constitutional requirement that President Donald Trump sought to evade by invoking the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua.
The named plaintiffs in this case, who are represented by the American Civil Liberties Union (ACLU), "vehemently deny" any affiliation with Tren de Aragua and "claim that they were never able to challenge the accusation before being removed," Boasberg notes. They were "already being transported to the airport and loaded onto planes" bound for El Salvador before Trump published the March 15 proclamation that supposedly justified their removal based on a rarely used, 227-year-old statute that previously had been invoked only during declared wars. They "were not told" where they were going or why.
