Trump Can't Use Wartime Law for Deportations

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2:03This is Bloomberg Law with June Grosso from Bloomberg Radio. Venezuela has been a very bad actor. They've been, as you know, they've been sending millions of people into our country, Many of them, Tren de Aragua, some of the worst gangs, some of the worst people anywhere in the world in terms of gangs. And we had some in Washington, D.C. We took care of them very quickly, but they're out of here. They're gone. The Trump administration used an 18th century wartime act to try to quickly deport alleged members of a violent Venezuelan gang in March, arguing that the Tren de Aragua gang had been sent to the U.S.

2:45by Venezuela's president to destabilize the country. But a federal appeals court has weighed in for the first time, blocking the administration from using the Alien Enemies Act of 1798 to deport the Venezuelans, finding that, quote, A country's encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States. Border czar Tom Holman had admitted that the law was being used to bypass normal deportation procedures like hearings in immigration court. I'm not arguing right here that nobody should get due process.

3:29I'm just saying there's a different process under Alien Enemies Act, less of a process you need to see through Title 8. D.C. federal appellate judge Patricia Millett had criticized the government for not giving the Venezuelans any opportunity to challenge their removal. There were plane loads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemy Act than has happened here, where the proclamation required the promulgation of regulations. And they had hearing boards before people were removed. The two-to-one decision from the New Orleans Appellate Court, the most conservative in the country, will most likely end up back at the Supreme Court.

4:13Joining me is Leon Fresco, a partner at Holland & Knight and the former head of the Office of Immigration Litigation in the Obama administration. Leon, this case has been going on almost six months. It has been up to the Supreme Court twice already. Catch us up. This case is a case involving President Trump's proclamation in March of 2025 that the Venezuelan gang, Tren de Aragua, was a dangerous invading force into the United States such that its members should be deported under the Alien Enemies Act, which permits deportation without due process. Essentially, the government can just apprehend anyone it says is in the Alien Enemies Act group, which in this case is Trenda Aragua, and deport them.

4:59And in the iteration that occurred, people were being deported to El Salvador, to the CICOTS prison. Now, there was two iterations of this case. The first one started in D.C., where Judge Bosberg had said that the government couldn't do this. And there was the debate about the flights and the debate about whether anything that was done was proper or there should be contempt. But nevertheless, the Supreme Court comes in and says, no, no, no, all of that was wrong. None of that should have been filed in D.C. These kinds of cases should be filed as habeas cases. Now, mind you, there was a decision a couple of years ago where Justice Alito had said no more habeas for immigration.

5:38But nevertheless, I think that these facts on the ground concerned the Supreme Court so much, they said, well, you got to be able to file something. So fine, we're back to habeas again. So you've got to file them as habeas cases. And the habeas cases have to be in the locations where people were being detained. Well, where were people being detained? They were being detained all over Texas. So there were district court decisions all over Texas. But now finally, the main case reaches the Fifth Circuit, and the Fifth Circuit in a two-to-one decision grants the preliminary injunction preventing the removal of the petitioners, who were the Venezuelan nationals, that the Trump administration wanted to deport under the Alien Enemies Act, saying that at the end of the day, the Alien Enemies Act doesn't justify their removal because there isn't a declared war, and that the actions of this Trenda Aragua gang do not constitute an invasion or a predatory incursion by a foreign nation or a government, which requires, in their view, military-like actions directed by a foreign power.

6:44They're saying this is more of some sort of a gang or criminal type of thing, but it isn't actually a military incursion. They don't even get into anything about whether these individuals specifically are members of Trente Aragua or anything like that. They just say that this manner of invocation of the Alien Enemies Act is unlawful, and so it cannot be used to create deportation without due process. Now, they did say if the Trump administration wants to deport these people, they can deport them under any other grounds that's permissible, just not this Alien Enemies Act provision that doesn't require any due process to occur.

7:25So I was listening to some of Tom Holman, the border czar's comments in the past about this, and he kept saying that they're terrorists. Was the argument that they're terrorists? Well, first of all, you're correct that there's a very concerted effort, even in this bombing that occurred this week with the Venezuelan drug lords on the boat, that everybody's calling them in the administration terrorists to try to link that with some sort of military-like action directed by a foreign power to get it as close as possible to the Alien Enemies Act. But what this court is saying is that's not really what these people are.

8:08These people are not being instructed by the Venezuelan government to come to the United States and commit war acts against the United States. These are just individual criminals trying to basically profit off of drug and gang activities. But they're not soldiers or quasi-soldiers acting on behalf of the Venezuelan government. This is a Fifth Circuit decision, a panel of the Fifth Circuit, the most conservative appellate court in the country. As you mentioned, two to one decision, a George W. Bush appointee and a Biden appointee in the majority, and in dissent, a Trump appointee. What did the dissent argue?

8:47Well, the dissenting judge, who used to be the Solicitor General of the State of Texas, a very well-known, strong conservative judge, Judge Oldham, he basically argued that the Alien Enemies Act is something that is so broad in terms of the congressional authority that the courts really don't have a role in reviewing a presidential determination under the Alien Enemies Act. Basically, what he was saying is that the courts should not be given the ability to second guess when the president says there's a war, because this can lead to very dangerous circumstances in that, you know, you have the president who has all of this sort of expertise in the sense that they have the Defense Department and the CIA and the NSA and the Department of Homeland Security to do all of this work and consultation.

9:41And if they make a determination that there is a dangerous environment akin to the environment that's required under the Alien Enemies Act, that for the courts who are just judges sitting there in Louisiana or Texas or wherever they're sitting that don't have all of this access to the Department of Defense and the Department of Homeland Security and the NSA and the CIA, etc., to be able to come in and say, well, we don't actually think this rises to the kind of war-level threat that is required under the Alien Enemies Act. He's saying that is incredibly dangerous because what is the limiting principle there?

10:23Now the judges can decide what is a war, what isn't a war, and that's not what Congress had intended here. The problem with that is, at the end of the day, if you really have no limiting principles on the Alien Enemies Act at all, including whether it can be invoked and who it can be invoked against, then at that point, I mean, there really would be no way for either you or I or any of your listeners to go into court if we were mistakenly apprehended by ICE. ICE could say, you know, Leon or June, you're members of this Trenda Aragua gang and we're sending you to El Salvador. And you could say, yeah, but I've never visited Venezuela and I don't even know any Venezuelans.

11:07And I'm not a member of a gang. I host the Bloomberg show. And it won't matter because there's no court to bring it to. And so I don't think anyone will be fully comfortable with that kind of decision. And I don't think the Supreme Court was comfortable with that, which is why they didn't issue that decision. And moving forward, I don't think they're going to get there in terms of that ability to just not have any due process determination as to these decisions. Yeah. Colorado judge called that argument nonsense. It's a difficult argument to make. I mean, look, it all depends where you're approaching this from.

11:46If you're approaching this from a belief system that everybody in the world acts in good faith, then you could conceivably understand. You'd say, well, why would a president ever want to do something like this if it wasn't absolutely necessary? And why would anyone ever put someone in a detention that isn't absolutely necessary, etc.? And so under that, you could understand a decision like that. But if you were to approach it from the perspective that sometimes people don't act in good faith or sometimes people make a mistake or anything else, then maybe you do need some due process in that system, because otherwise, what is checking those kinds of abuses from occurring?

12:28The ruling could be appealed to the full circuit, the full Fifth Circuit, or could be appealed directly to the Supreme Court. Is there any reason to bother going for an en banc hearing at the Fifth Circuit when the case is just going to end up at the Supreme Court anyway? Well, it may give you a stronger hand to show how, you know, right now the government doesn't have the strongest hand. And maybe, you know, the government wins in the Fifth Circuit fully. And so then it would be the onus then on the foreign nationals to actually then appeal to the Supreme Court. So from that perspective, they may want to strengthen their hand.

13:09But honestly, if the Trump administration is trying to really say, hey, these are the most dangerous people in the world and we need to get them out as soon as possible, asking for en banc review of the Fifth Circuit doesn't seem to make a lot of sense, because why are you delaying getting to the ultimate outcome here? So I don't think from a political perspective it makes a lot of sense to go for en banc review. It may make sense from strengthening the argument in a typical case because you might win in the en banc. But at the end of the day, if what you're trying to say is, look, we need a final answer, we need to get these terrorists out of the country as soon as possible, I think you would want the Supreme Court to look at this as soon as possible.

13:52So the Supreme Court never answered the question of whether Trump's use of the Alien Enemies Act is valid. Do you have any inkling from the way they ruled in the two other cases, how they might rule? Well, I think that at the end of the day, there won't be five justices that say that you can't review this general concept of whether it was proper to have an Alien Enemies Act determination. Now, they may give some very strong deference to the administration. In fact, I would be shocked if they didn't give strong deference to the administration. But they may say, look, even with very strong deference, this isn't the kind of case that gets it.

14:34I mean, that issue is going to be closed. I don't think there will be any justice that says that an individual person can't come forward and make a claim, well, yeah, but I'm not part of whatever group you're trying to claim I'm a part of. I think those people will nine nothing be able to get due process in habeas or in some other way to be able to make that argument that, look, you may claim there's a problem, but I'm not a member of the problem group. That's the second thing. And then the third thing, which the court doesn't really do too much with, it's sort of a two-one way. They say that seven days is enough to make these claims so that the government, if they designate you as part of the problem group, you have seven days to file a lawsuit or you can be deported.

15:20And, you know, The dissenting judge there, Judge Ramirez, who was the majority for most of it, but not for this, said, no, you need 21 days at least. And, you know, this is all everybody just making this up out of whole cloth. But the question is, you know, if you don't speak English, you don't have access to a lawyer, what is a reasonable amount of time to give you to file a federal habeas complaint in the court? That's not the easiest thing for someone to do. Imagine, you know, you or I going to China right now and trying to file a court document there where we don't speak Chinese. We don't know anything about the law.

15:53We don't know anything. You know, what would be a reasonable amount of time to give a person in that situation? And so that's the question here. And, you know, the Supreme Court's going to have to grapple with that, too. Coming up next, we'll tell you why 76 Guatemalan children were put on planes during the early morning hours Sunday until a judge stepped in. This is Bloomberg. Everyone's talking about how AI is transforming work, especially in sales. While the landscape shifts, one thing remains the same, the thrill of closing a deal. Whether it's a gong or a confetti machine, every team has its celebration rituals.

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18:29Remember, Wasabi is up to 80 % less than market competition and doesn't charge a cent for businesses to access their own data. Wasabi, another championship story. Check them out for free at wasabi.com. Wasabi Hot Cloud Storage, proud partner of iHeart Podcast Network. A group of Guatemalan children are caught in a legal battle. 76 children, one as young as seven, were put on three planes in Texas during the early morning hours Sunday to return to the Central American country. But a judge blocked their removal after attorneys argued that the administration was attempting to repatriate them without giving them the opportunity to challenge their removal.

19:18Renato Castro is an immigration attorney. Imagine the position of the children inside those planes today. While we were arguing over the government's practices in court, the children were sitting in a plane at the Harlingen Airport or El Paso Airport for hours, not knowing what's going to happen or why or where they are going or when they're going to be let go. It's just horrendous. I've been talking to immigration law expert Leon Fresco, a partner at Holland and Knight. Leon, why were these 76 children put on planes over Labor Day weekend in the early morning hours? So here's what happens. So in general, the Office of Refugee Resettlement, which is part of the Department of Health and Human Services, keeps some number of unaccompanied minors who come into the United States in custody until they can be given to some caring adult in the United States that has to be vetted by the Office of Refugee Resettlement.

20:17So at the moment, the administration identified sort of a class of people that was in this kind of detention. And so it was about six to seven hundred Guatemalan foreign nationals that were minors. And what they said was these minors actually have parents in Guatemala that are still there. and you know this is disputed whether that's true or not but for the purposes of this let's just start with what the trump administration is saying they're saying that all of these six to seven hundred minors basically ran away from home but they actually have parents in guatemala they're not orphans so to speak and so what they wanted to do was to say instead of having them go through the whole immigration deportation process they basically went to these kids and said do you want to do that and it's going to basically end in deportation anyway and you'll never be allowed to come in?

21:11Or do you want to sort of let bygones be bygones and we'll pretend you were never here and one of these days you could always come back legally? And so their argument is that these kids consented to quote-unquote voluntary departure, which would mean they didn't have to go through any of these proceedings, and Guatemala consented to bring these kids back, so they were just going to fly them back to Guatemala. Well, then the lawsuits come in basically saying, no, no, no, no, no, no, this is not what's happening at all. This is a deportation in cheap clothing. And they didn't give the kids the chance to make asylum claims or claims that they had been trafficked or claims for something known as special immigrant juvenile status, which is that if you've been abandoned, abused or neglected by your parents, you can actually have a status that allows you to remain in the United States.

22:00And so they're saying that those opportunities should have been permitted. And this was essentially a coerced deportation. And so for now, we have an injunction from a district court that prevents this for at least the next 14 days until we can get to the bottom of whether this kind of operation is legal or not. These kids, some as young as seven? Do they just show up at the border by themselves? Well, it could happen in one of two ways. They could either show up at the border completely unaccompanied, and sometimes that does happen. But more often than not, what happens is they show up at the border with an adult, but that adult isn't their parent.

22:41So it's just somebody else who brought them. And then they say, where are your parents? And they say, you know, my parents abandoned, abused, or neglected me. Then they get put in these shelters. And what these kids are essentially trying to do is they're trying to get this status called special immigrant juvenile status, which permits them to stay in the United States permanently if they can show that they've been abandoned, abused, or neglected by their parents, and that a state court, so it would have to be any state, would say that it's in the best interest of this child to remain with whatever now Guardian has them in the United States.

23:18Now, Now, people think this was a sort of a manipulation of what had been meant to occur. So I'll give you just very briefly. If you want to say a quintessential case, I had a case a long, long time ago where there was a Haitian couple. And what happened was the Haitian couple traveled with their child to the United States, and they were here legally. And what happened was the father shot the mother, murdered the mother. And so the mother is no longer available. The father is now in prison for life. And now the question is, what do you do with this three-year-old child? Do you send them back on a plane to Haiti?

23:53Good luck. And so that's what special immigrant juvenile status was meant for, is no, no, no, no, no. You know, we're not going to just send a three-year-old child on a plane and say good luck and just push them out of the plane. We're going to try to find them some guardian like we would if this occurred in the U.S., and then that guardian doesn't have to worry about the child's status because we'll give the child a permanent status. So that's what it was meant for. But over the course of the last 15 years, people figured out, but yeah, I can engineer this claim by just coming to the U.S. by myself as a minor and saying that my parents abandoned, abused, or neglected me, and so that's why I'm coming to the U.S.

24:33And so you've seen in some years up to 100 ,000 of these kinds of minors coming into the United States. And that is what the Trump administration is trying to end. They're trying to end that by basically telling these minors, look, this is going to end in deportation. It's not going to end in lawful status. So voluntarily agree to leave. And so that's what they're trying to do here. So it is correcting an abuse then of the system? Well, it's correcting what the Trump administration would argue is an abuse of the system. The people who do this for a living on behalf of the minors would say it's not an abuse of the system.

25:09So I'm not going to opine, but I would say that I don't think that the people who drafted these laws in Congress probably would have consented to a situation where any minor could come to the United States and just say they were abandoned, abused, or neglected and get a green card to stay here. I don't think that was their intent. I think their intent was to take care of a situation where there was a case where it was an unforeseen situation and now you have an abandoned minor in the U.S. And what are you going to do with this abandoned minor? So there's going to be a hearing on September 10th on the children's request to extend the temporary restraining order.

25:51This seems like a novel issue. Do you think the case will be one of the ones that ends up being appealed to the appellate court and then the Supreme Court? I think it will eventually if it gets enjoined by the district court permanently. I do think they will want to go up to the appellate court. I don't think it will work here because the First Circuit's pretty, you know, liberal at the moment. So they're not really siding with the Trump administration. But then would it go all the way up to the Supreme Court? And would the Supreme Court allow these kinds of volunteers? Because really what this is going to come down to is, is this a deportation?

26:28If it's a deportation, they can't do it. they have to follow certain laws in order to deport kids. These laws are established by the Trafficking Victims Protection Reauthorization Act of 2008. So they have to follow all of those procedures. But what the Trump administration is trying to say is these aren't deportations. These kids want to go back home. And so the question is, can they get a court to agree that these kids want to go back home or is this going to be viewed as a coerced type of situation? So now the Trump administration is reinstating a practice that hasn't been used since the 90s of conducting neighborhood checks for people who want to become citizens?

27:09Correct. And what's very interesting about this is, just like in the Alien Enemies Act situation, where you had a situation where they're reincarnating, let's say, a statute that was from 1789 that has been used, but very rarely, And so all that is old is new again. Here's another example where there is a statute, there's no doubt. And that statute was written in 1802, essentially. And here in that statute, petitioners for naturalization were required to present witnesses who could testify to their qualifications for citizenship. And then in 1981, Congress comes in and says, you know what, let's not do the witnesses anymore.