Nazis were treated better than Venezuelans deported by Trump, judge says at hearing

WASHINGTON - A US appeals court judge said on March 24 that Nazis were given more rights to contest their removal from the United States during World War II than Venezuelan migrants deported by the Trump administration.

In a contentious hearing, US Circuit Judge Patricia Millett questioned government lawyer Drew Ensign on whether Venezuelans targeted for removal under a little-used 18th-century law had time to contest the Trump administration’s assertion that they were members of the Tren de Aragua gang before they were put on planes and deported to El Salvador.

“Nazis got better treatment under the Alien Enemies Act than has happened here,” Judge Millett said, to which Mr Ensign responded: “We certainly dispute the Nazi analogy.”

Prior to the Trump administration’s invocation of the 1798 Alien Enemies Act, the law had been used three times in US history, most recently to intern and remove Japanese, German and Italian immigrants during World War II.

The Trump administration was asking the appeals court to halt Washington-based US District Judge James Boasberg’s two-week ban, imposed on March 15, on the use of the law to justify deportation of alleged Tren de Aragua members without final removal orders from immigration judges.

Family members of many of the deported Venezuelan migrants deny the alleged gang ties. Lawyers for one of the deportees, a Venezuelan professional soccer player and youth coach, said US officials had wrongly labelled him a gang member based on a tattoo of a crown meant to reference his favorite team, Real Madrid.

Judge Millett, an appointee of Democratic President Barack Obama, is one of three judges on a panel of the US Court of Appeals for the DC Circuit hearing the government’s challenge to Judge Boasberg’s order. US Circuit Judge Justin Walker, who was appointed by Republican Donald Trump during his first term as president, appeared more supportive of the government’s arguments.

The third judge on the panel, Karen Henderson, was appointed by Republican President George H.W. Bush. The court did not say when it would rule.

The case has emerged as a major test of Mr Trump’s sweeping assertion of executive power. With Republicans holding a majority in both the House of Representatives and Senate and largely falling in line behind the president’s agenda, federal judges often have emerged as the only constraint on Mr Trump’s wave of executive actions.

In a March 24 court filing, government lawyers told Judge Boasberg that they would not be providing any more information about the deportation flights, invoking the state secrets privilege. That legal doctrine allows the government to withhold information that might endanger national security during court proceedings.

After Judge Boasberg temporarily halted the deportations, Mr Trump called for the judge’s impeachment in a process that could lead to his removal. In response, US Supreme Court Chief Justice John Roberts issued a rare statement rebuking Mr Trump and stating that appeals, not impeachment, are the proper response to disagreements with judicial decisions.

‘Hustled’ onto planes

Mr Trump has argued that it is the judiciary, not his administration, that is overreaching.

At the hearing on March 24, Mr Ensign told the appeals judges that Judge Boasberg’s order must be paused because the judge had no right to second-guess the president’s decisions on foreign affairs matters.

Judge Walker asked Lee Gelernt, a lawyer with the American Civil Liberties Union (ACLU) representing some Venezuelan migrants, for examples of past cases in which courts have restricted presidents’ national security actions and been upheld on appeal.

Mr Gelernt said the government could not take the position that giving people due process would interfere with national security.

In a 37-page ruling earlier on March 24, Judge Boasberg rejected a request by the Trump administration to set aside the two-week ban. The judge said people must be able to challenge the government’s stance that they are indeed members of Tren de Aragua before being deported.

Judge Boasberg is also weighing whether the Trump administration violated his order by failing to return deportation flights after his order was issued.

The judge wrote that the administration appeared to have “hustled people onto those planes” to avoid a potential court order blocking the deportations.

The Trump administration on March 15 deported more than 200 people to El Salvador, where they are being detained in the country’s massive anti-terrorism prison under a deal in which Washington is paying President Nayib Bukele’s government US$6 million (S$8 million).

Judge Boasberg’s ruling on March 24 applied to five plaintiffs represented by the ACLU involved in a prior more narrow ruling, as well as other Venezuelans in the US who may be targeted for removal under the Alien Enemies Act. The judge did not address the migrants currently held in El Salvador.

In a court filing on March 24, the ACLU urged Judge Boasberg to require the migrants be returned to the US if he establishes they were deported in violation of his order.

The ACLU said eight Venezuelan women and a Nicaraguan man were among those flown to El Salvador, but rejected by the government and returned to the US. In a sworn declaration, one of the Venezuelan women said she heard a US official while in flight discussing an order “saying we can’t take off”. REUTERS