UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 25-1404 (8:25-cv-00951-PX)
KILMAR ARMANDO ABREGO GARCIA; JENNIFER STEFANIA VASQUEZ SURA; A.A.V., a minor, by and through his next friend and mother, Jennifer Vasquez Sura,
Plaintiffs – Appellees,
v.
KRISTI NOEM; TODD LYONS; KENNETH GENALO; NIKITA BAKER; PAMELA JO BONDI; MARCO RUBIO, Defendants – Appellants.
O R D E R
WILKINSON, Circuit Judge, with whom KING and THACKER, Circuit Judges, join:
Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
The Supreme Court’s decision remains, as always, our guidepost. That decision rightly requires the lower federal courts to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Noem v. Abrego Garcia, No. 24A949, slip op. at 2 (U.S. Apr. 10, 2025); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936). That would allow sensitive diplomatic negotiations to be removed from public view. It would recognize as well that the “facilitation” of Abrego Garcia’s return leaves the Executive Branch with options in the execution to which the courts in accordance with the Supreme Court’s decision should extend a genuine deference. That decision struck a balance that does not permit lower courts to leave Article II by the wayside.
The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It requires the government “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Abrego Garcia, supra, slip op. at 2. “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 (“[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return,” Mot. for Stay at 2, is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.
“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. “Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign USCA detention centers in the manner attempted here. Allowing all this would “facilitate” foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.
The government is obviously frustrated and displeased with the rulings of the court. Let one thing be clear. Court rulings are not above criticism. Criticism keeps us on our toes and helps us do a better job. See Cooper v. Aaron, 358 U.S. 1, 24 (1958) (Frankfurter, J., concurring) (“Criticism need not be stilled. Active obstruction or defiance is barred.”). Court rulings can overstep, and they can further intrude upon the prerogatives of other branches. Courts thus speak with the knowledge of their imperfections but also with a sense that they instill a fidelity to law that would be sorely missed in their absence.
“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.
And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.
The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?∗ And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.
Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, WHITE HOUSE (Apr. 14, 2025). We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.
The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.
FN:* See, e.g., Michelle Stoddart, ‘Homegrowns are Next’: Trump Doubles Down on Sending American ‘Criminals’ to Foreign Prisons, ABC NEWS (Apr. 14, 2025, 6:04 PM); David Rutz, Trump Open to Sending Violent American Criminals to El Salvador Prisons, FOX NEWS (Apr. 15, 2025, 11:01 AM EDT).
It is in this atmosphere that we are reminded of President Eisenhower’s sage example. Putting his “personal opinions” aside, President Eisenhower honored his “inescapable” duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools “with all deliberate speed.” Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.” Id. at 3. Indeed, in our late Executive’s own words, “[ u]nless the President did so, anarchy would result.” Id.
Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
In sum, and for the reasons foregoing, we deny the motion for the stay pending appeal and the writ of mandamus in this case. It is so ordered.
Japan Rep DESTROYS Trump in FLOOR SPEECH MeidasTouch Apr 18, 2025
MeidasTouch host Ben Meiselas reports on Japanese Opposition Lawmaker destroying Trump in a House of Representatives floor speech and Meiselas analyzes how Trump has done grievous harm to our relationship with Japan and has strengthened China’s hand.
Transcript
[Ben Meiselas] Wow a lawmaker in Japan from their opposition party just gave a powerful speech in their House of Representatives smacking down Donald Trump calling him an extortionist comparing him to a mobster this speech went hard the opposition lawmaker's name is Shinji Aguma and in this speech he's talking to the governing party and he's saying "Be very careful and mindful in your negotiations with Trump who you are dealing with do not give in to the Trump regime because like an extortionist they come back for more they view your good faith as a sign of weakness." Now Shinji Aguma tells the governing party "Look I know you're busy but if you have time go watch documentaries on Donald Trump study his behavior in the past look at what he's bankrupted before note that he's a felon a sexual abuser someone who's been found civily liable for fraud someone who's a felon who's been found criminally liable for business records fraud watch this speech it's courageous it's in their House of Representatives we've dubbed it an AI so you can actually hear the speech we also have the subtitles as well sorry to our Japanese viewers that we're not playing in its in original language but I want everybody to watch it so um you can understand what this lawmaker is saying wow wow wow indeed here play this clip.
[Shinji Aguma] What the United States is saying is completely unreasonable. The logic is all over the place. And there's no consistency whatsoever. When Japan negotiates regarding what they're saying, well, to put it clearly, it's close to extortion by juvenile delinquents. If Japan gives in, and follows their unreasonable demands, saying it's negotiation, or deal, it will set a bad precedent, and create a negative example. If the extorter gains money once, it's certain that they will extort again.
The formula itself is a complete mess. I wasn't great at math, but if that showed up in a math exam, it would definitely score zero. That's why, although Minister Akazawa is serious, and capable, there is also concern about whether a serious person can handle it, since they are not reasonable. They won't listen to reasonable things. Although I said every option, you absolutely must not provide information to an unreasonable opponent. If you get concessions that way, it will set a bad example. Anyway, please do not give into the extortion from the US, though it's really bad to say it, but this is extortion. If we listen to this, it will really become a bad example.
I know Minister Iwata may not have time, but there are various online broadcasts, and there's a documentary about Roy Cohn, the lawyer who raised him, and there's a documentary about Mr Trump as well. Please watch those if you can, what kind of person Mr Trump is at the time. When I want you to know a bit about him, just by watching it you really think, "Oh, so that's the kind of person he is. And during the review of Tariffs, this time he casually went to play golf at his own golf course. A senatoral conclusion I struggled with is really mocking the world. Well, yeah, Ryosei Akazawa, Japan's minister for economic revitalization, is also a serious person, and Japan’s Minister for Foreign Affairs, Takeshi Iwaya, is a serious minister too, so if you seriously engage with that aspect, you'll just get into trouble. Please, Minister Iwaya, remember how lively you were in your younger days. Even now I would like Minister Iwaya, with his lively and spirited nature, to demonstrate that assertiveness in negotiations with the United States. I ask you to promise not to yield to extortion.
This concludes my questions. Thank you very much. I think the tariff measures by the United States are still in a very fluid stage, changing rapidly like a daily menu, as you already know, so it's not a situation where we can definitively say it will definitely continue in a certain way. I believe it is important to foresee a review through negotiation efforts.
[Ben Meiselas] I told you that speech went hard now. I want to reflect on an interview that we did here on the Meidas Touch Network two and a half weeks ago with the former ambassador of Japan, Rahm Emanuel. Rahm Emanuel also served as the mayor of Chicago. He was the chief of staff to former President Obama, but as the ambassador to Japan, he knows about all these issues. And here at the Meidas Touch Network, we were flagging these issues many, many weeks ago. Here's what Ambassador Emanuel, Ambassador from Japan, told us. This was two and a half weeks ago when he told us this. Play this clip.
[Rahm Emanuel] First, Japan's the number one foreign direct investor in the United States for the last four years, consecutively. Over a million Americans work for Japanese companies, and nearly half of their investment goes to manufacturing. So it's a kind of, you know, we're going to kind of pennywise and dollar foolish here. Second, Japan hosts the largest military footprint the United States has anywhere in the world. It's the only country that has a permanent aircraft carrier. It is the long pole in our deterrence against China, in the Indo-Pacific. And so, nothing stays just in the economic lane. It's a relationship. So that means national security, diplomatic support. It means political support, and it means economic support and integration. Second, imagine this. When the United States wants to put further sanctions on China as it relates to export controls for high-tech, the only way it's successful is Japan, Korea, Taiwan, the Dutch, stand shoulder-to-shoulder with the United States. They're going to think real hard about whether we should stand with the United States, or allow our companies to continue to export to China. So, you know, relationships don't just have one lane. It's a series of things. You weigh equities against each other. So I think this is very shortsighted in this approach. There's a way you could have approached, as we did in years past. When I worked for President Clinton, we did the five pillars on trade, etc. Japan now is the number one, as I said, number one foreign investor in the United States. Nearly a million Americans work for them, and of those, half are in the manufacturing industrial space.
[Ben Meiselas] And what Ambassador Emanuel also predicted back then, and it all came true, it's why we bring the best experts in these subject matter areas to the Meidas Touch network, when corporate news is not doing that, he said ,"Look here's what China is going to do. Here's how China's planning this. Donald Trump is playing right into the hands of China. All of the hard work from the Obama administration, the Biden administration, Clinton administration, Donald Trump is flushing that down the drain." Play this clip.
[Rahm Emaneul] Having been a person on the ground who helped create the trilateral between the United States-Japan- and-Korea, and it was historic because it showed a united front, and a clear credible deterrent against China, China was very nervous. Now that we have decided to pull back, step back, and beat our allies like they are adversaries, China is in the middle, now having had two meetings, both with Japan and Korea jointly, on both the foreign policy diplomatic front, and also on the trade front. So they're going to reap all the advantages that we built between the United States, Japan, and Korea. And so we're literally hurting not only our allies, but hurting the credibility of our deterrence against our number one threat, China.
[Ben Meiselas] Sorry about that speak to that because you because you negotiated that speak to that because people I talk about it on the show a lot how China's moving in and filling the void both in terms of bricks and also reaching out outside of bricks with people and what countries that formerly allied with the US here's what you should note ever since the United States in Ukraine showed a weakness and a vulnerability towards Putin that very week or two a week later China did an unprecedented naval exercise against Australia our ally they had to shut down civilian air aircraft air traffic near Sydney they did an unprecedented move against Japan in the Sea of Japan they did it against Vietnam they did it in the Philippine area and they did it on Taiwan Straits so they see weakness weakness invites aggression you have to be smart about your deterrence but it is not an accident that both while China is talking to Japan and Korea which are very important allies they project our p our power they reinforce the basic message of the United States that we are a permanent Pacific power and presence you can bait bet long on us versus China's theory we're the rising power the United States is declining power you either get in line or we're going to get you're going to get coercion and in this situation we built something That is a fundamental restructuring of the strategic landscape of the region enhancing America's credibility of its deterrence china took note of it now all of a sudden the administration's walked away from it and China is stepping into that void and taking all the benefits and all the fruits of our hard work now at his uh awful press conference yesterday Donald Trump was asked "So we're seeing Xi Jinping meeting now with allies does that scare you Donald that he's meeting with our allies now and cutting deals while you tariff the world this is what this is what Donald Trump says let's play it china on China Mr president um you have said in the past that you are worried about allies growing closer to China as a result of the tariffs and this week you saw Chinese President Xi visit with three of our allies should you be worried no no no nobody nobody can compete with us nobody hear what he says so cavalier no nobody can compete with us nobody can compete with us this is Donald Trump continues to attack Canada calling it the 51st state saying he wants to annex and conquer Canada trump attacks Australia trump attacks Europe may I show you this former President Biden this is what took place August 18th 2023 it's huge you have former President Biden galvanizing world leaders and bringing together this historic summit south Korea and Japan and the United States in the past something like this would be unthinkable watch former President Biden and contrast it to Donald Trump's behavior play this clip it's the first ever standalone summit between the leaders of Japan and Republic of Korea and the United States and I can think of no better way no better way to mark our new chapter of our trilateral cooperation than meeting here at Camp David and so strengthening the ties between our democracies has long been a priority for me dating back to when I was vice president of the United States that's because our countries are stronger and the world is safer let me say that again our countries are stronger and the world will be safer as we stand together and I know this is a belief we all three share and I want to thank you both for your political courage that brought you here and I'm looking forward to us having a great meeting but continuing these meetings you stepped up to do the hard work the I would argue historic work to forge a foundation from which we can face the future together the three of us together and I'm deeply grateful for your leadership and I look forward to working with both of you as we begin this new era of cooperation and renew our resolve to serve as a force of good across the Indoacific and quite frankly around the world as well okay so that's former President Biden contrast that to Donald Trump pulling out that board of those uh fake tariff numbers that Donald Trump came up with and then he's talking about his conversations with uh the former prime minister of Japan who was assassinated and just watch how despicable this is by Donald Trump here play this clip understand they're ripping us off and they understood it uh prime minister of Japan uh Shinszo was Shinszo Abi he was a fantastic man he was unfortunately taken from us assassination but I went to him and I said "Chinszo we have to do something at trade it's not fair." He said "I know that i know that." And he was a great gentleman he was uh a fantastic man but he understood immediately what I was talking about i said "Shinszo we have to do something." He said "I know that." Now you saw what Biden did here's what's happening now we've been talking about it here on the Midas Touch Network south Korea China and Japan working together to promote regional trade as Trump tariffs loomed that's when they loomed they were preparing for this as Ambassador Rahm Emanuel said this is what they were doing and now you have Xi Jinping going to Vietnam cutting deals with Australia cutting deals with Europe and Canada buying oil from them not the United States this ain't the art of the deal Donald you just look stupid and you've harmed America irreparably and it's just so interesting to see foreign leaders just know his type but these magma mushbrain morons who support this guy here in the United States whose minds their craniums have been turned into this globular red jelly mush by Fox it's wild anyway hit subscribe
LIVE: Sen. Van Hollen holds news conference after meeting Kilmar Abrego Garcia in El Salvador ABC News Streamed live on Apr 18, 2025
Sen. Chris Van Hollen holds a news conference after meeting Kilmar Abrego Garcia, the Maryland resident who courts say was erroneously deported from the United States last month, in El Salvador. https://abcnews.go.com/US/maryland-se...
Transcript
legal abduction of Kilmar Abrego Garcia and bring him home too we're joined by his wife Jennifer by his mother Cecilia by his brother Cesar and thank all of the rest of you who are joining us in solidarity with the Constitution and Kilmar look I'm a little um sleepdeprived um and I want to be as clear as possible about what this is about and what it's not about so I'm going to read the remarks that I wrote on the plane ride home as the federal courts have said we need to bring Mr abrego Garcia home to protect his constitutional rights to due process and it's also important that people understand this case is not just about one man it's about protecting the constitutional rights of everybody who resides in the United States if you deny the constitutional rights of one man you threaten the constitutional rights and due process for everyone else in America yes the Fourth Circuit put it very clearly in its strong opinion yesterday and I quote "It is difficult in some cases to get to the very heart of the matter but in this case it is not hard at all the government in this case the Trump administration is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundational constitutional order further it claims in essence that because it has rid itself of custody that there is nothing that can be done this should be shocking not only to judges but to the intuitive sense of liberty that Americans far removed from the courouses still hold dear they summed up the issue at stake perfectly and that's why the Supreme Court in a nineto-o decision ordered the Trump administration to facilitate the return of Mr abrego Garcia now the Trump administration wants to flat out lie about what this case is about they want to change the subject they want to make it about something else and they are flouting the orders from the federal district court the fourth circuit court and the Supreme Court to facilitate his return that's why I traveled to El Salvador leaving here on Wednesday and I want to express my gratitude to members of my family and members of my staff who agree that we all must be prepared to take risks because of the current risk to our constitution itself in addition to doing a variet having a variety of discussions on bilateral issues between the United States and El Salvador I had two main goals one was to urge the government of El Salvador not to be complicit in the illegal abduction and detention of Mr abrego Garcia and to release him i made that request directly to the vice president of El Salvador the president was out of country at the time and I've previously reported on that conversation my principal mission was to meet with Kilmar Abrego Garcia i told his wife Jennifer and his family that I would do everything in my power to make that happen and last night at about 6:40 p.m el Salvador time 8:45 p.m here on the East Coast I called Jennifer to tell her that I had met with Kilmore and I told her what he said to me which was first and foremost that he missed her and his family and as he said that you could see it here now getting a meeting with Kilmar was not easy on Wednesday I met with the vice president of Al Salvador and asked if I could meet with him the answer was no i asked if I returned the following week whether I could meet with them the answer was no i asked if I could call him on the phone the answer was no i asked if his wife Jennifer could call him on the phone the answer was no no to his wife no no to his mother no to his warriors so the following day which was yesterday I decided to give it another try by driving to Secott secott is the notorious prison where Kilmar was taken when he was abducted i was accompanied by a lawyer for Kilmar's wife Jennifer and mother Sicilia Chris Nuome about 3 kilometers outside of CCOT we were pulled over uh by soldiers you could see the rest of the traffic was allowed to go by we were pulled over by soldiers and told that we were not allowed to proceed any farther when I asked why he was told that they had orders not to allow us to go any further when I asked them if they knew anything about the condition of Mr garcia they said no and so much later in the afternoon I was actually getting ready to catch a plane out of San Salvador back here later yesterday evening and all of a sudden I got word that I would be allowed to meet with Kilar Abrego Garcia and they brought him to the hotel where I was staying and after that meeting as I said I called his wife Jennifer to report on some of the news of that meeting and now I'm going to report to all of you about our discussion when I told him that his wife and family sent their love and were fighting for Kilmar to return home every day he said that he was worried about all of you that was his response how are you dealing with this horrible ordeal and nightmare for the family he said that thinking of you members of his family is what gave him the strength to persevere to keep going dayto day even under these awful circumstances he spoke several times about your 5-year-old son who has autism 5-year-old son who was in the car in Maryland when Kilar was pulled over by US government agents and handcuffed his 5-year-old son was in the car at that time he told me that he was taken to Baltimore first i assume that was the Baltimore detention center he asked to make a phone call from there to let people know what had happened to it but he was denied that opportunity he said he was later taken with some others from Baltimore to a detention center in Texas and some point thereafter I don't know whether it was period of hours or days he was handcuffed shackled and put on a plane along with some others where they couldn't see out of the windows there was no way to see where they were going in the plane they didn't know for sure where they were going they landed in El Salvador and he was taken to Sikkat prison he was placed in a cell with if I recall correctly and don't hold me to it of about 25 other prisoners at SEC he said he was not afraid of the other prisoners in his immediate cell but that he was traumatized by being at Secot and fearful of many of the prisoners in other cell blocks who called out to him and taunted him in various ways he told me and this was yesterday that eight days ago so I guess nine days ago from today he was moved to another detention center in Santa Ana where the conditions are better but he said despite the better conditions he still has no access to any news from the outside world and no ability to communicate with anybody in the outside world his conversation with me was the first communication he'd had with anybody outside of prison since he was abducted he felt he said he felt very sad about being in a prison because he had not committed any crimes when I asked him what was the one thing he would ask for in addition to his freedom he said he wanted to talk to his wife J i told him I would work very hard to make that happen i told him that in addition to his family that all of you who are here today were fighting to bring him home i told him that his brothers and sisters in his union the sheet metal workers union were fighting to bring him home that brought a smile to his face i told him that millions of Americans understand that what is happening to him is a threat to their own constitutional rights i told him about the decisions of the federal courts the district court the fourth circuit court the Supreme Court and I think that in addition to knowing that his family was fighting for him all of that gave him strength the fact that all of you here were fighting for him i want to say something about the Trump administration's efforts to change the conversation about what this case is about this case is about upholding constitutional rights for Obago Garcia and for every American the president President Trump and the Trump administration wants to say that those who are fighting to stand up for our constitution don't want to fight gang violence that is an outright lie that is a big big lie i for one have been fighting against transnational gang violence especially MS-13 for over 20 years probably for longer than Donald Trump ever uttered those words MS13 over 20 years ago I worked to establish a anti-gang task force a regional anti-gang task force in the Maryland Washington DC and Virginia area i did it in a bipartisan way with then Congressman Frank Wolf and Tom Davis and we have made substantial progress in this region we have a long way still to go but those efforts have resulted in progress so I say to the president and the Trump administration if you want to make claims about Mr abrago Garcia and MS13 you should present them in the court not over social media that's right not at press conferences where you just rattle stuff off because here is what federal district court judge said about exactly this issue this is Judge Zillus so she is the federal district court judge in the district of Maryland where the case first appeared this is a quote from her opinion defendants and in this case this is the Trump administration she's referring to have offered no evidence have offered no evidence linking Abrago Garcia to MS-13 or any terrorist activity and vague allegations of gang association alone do not supersede the express protections offered under the IMA." unquote she emphasized this point and I'm quoting "No evidence before the court connects Abrao Garcia to MS-13 or any other criminal organization." In other words put up in court or shut up what the Trump administration did admit in court was that Kilargo Garcia has been mistakenly detained they called it a quote administrative error unquote an administrative error that has resulted in him being abducted off the streets of Maryland and put into prison in El Salvador that has deprived him of his personal freedom and liberty but rather than fix this grievous error that they agreed had been made in court what did the Trump administration do they they upgraded and fired fired the lawyer who told the truth to the court that's right that's what they did they didn't fix the error they fired the lawyer who told the truth about this awful egregious mistake and now despite the fact that the Supreme Court has ordered the Trump administration to fix that error they and that has deprived Mr abrego Garcia of his liberty they are flaunting they the administration the Trump are flaunting the court order to facil facilitate its return and the government of El Salvador is complicit in that illegal scheme yes so we need to hold both of them accountable and we can talk more about how to do that but as I said at the beginning this case is not only about one man as important as that is it is about protecting fundamental freedoms and the fundamental principle in the constitution for due process that protects everybody who resides in America this should not be an issue for Republicans or Democrats this is an issue for every American who cares about our Constitution who cares about personal liberty who cares about due process and who cares about what makes America so different which is adherence to all of those things this is an American issue now I just want to take a moment and I hadn't planned to to do this but uh as I was landing on the airplane I I got a transcript of a some questions President Trump was asked uh at the White House uh today about what uh I would call u Margarita Gate i don't know if you guys have been following this but President Bali you know after I met with Kilmar did this tweet showing us at a table with these two glasses so here's what happened when I first sat down with Kilmar we just had glasses of water on the table i think maybe some coffee and as we were talking one of the government people came over and deposited two other glasses on the table with ice and I don't know if it was salt or sugar around the top but they look like margaritas and if you look at the one they put in front of Kilmar it actually had a little less liquid than the one in me in front of me to try to make it look I assume like he drank out of it let me just be very clear neither of us touched the drinks that were in front of us and if you want to play a little Sherlock Holmes I'll tell you how you can know that so if you look at the video or the picture I sent out from the beginning of our meeting you'll see there are no glasses on the table so you'll see in later videos they are on the table but they made a little mistake for some people right if you sip out of one of those glasses some of whatever it was salt or sugar would disappear you would see a gap there's no gap nobody drank any margaritas or sugar water or whatever it is but this is a lesson into the lengths that President Bali will do to deceive people about what's going on and it's also shows the lengths that the Trump administration and the president will go to because when he was asked about a reporter about this he just went along for the ride so the White House and the president had been lying about this case from the beginning they've been trying to change the subject from the beginning as I said and the courts have said from the Supreme Court to the Fourth Circuit to the District Court what this is about is adhering to the Constitution to the right of due process and that's why we say bring Kilmar home so he can be afforded his rights under the Constitution that's what this is about the firestorm his deportation his fear number so I told him that was the first he heard you can address the Sure the first he heard is that after I told him that um his family was fighting for him i told him everybody else that was fighting for him including his union members but also people from across Maryland in fact across the country who recognize that depriving Kilmar of his constitutional rights is a threat to everybody who resides in America he had not heard that i believe that gave him additional strength senator what did Abrago Garcia say that the officials in El Salvador told him about why he was sent to that prison and how long he would be there they haven't told him anything about why he was sent or how long he would be there they didn't tell him anything about that in fact in fact I asked the vice president exactly that question you know why is he here is he violating any laws in El Salvador is he do you have any proof that he's committed a crime you know why why are you why is he here because the Trump administration is paying us to keep him heard from other migrants that were also there that were also deported to that prison did he say what he had heard from others who were also deported to that prison he only he did not know about what was happening in the outside world sir and let me just say at SAT I want to be really clear at SAT they don't let any of the prisoners have access to the outside world that's one of the conditions one of the notorious parts of that prison which by the way is a blatant violation of international law as I said when I was senator you're the first person that can see a person that was in Seot and that left Seot what did he say about how it is being there because he's the first prisoner from Seot that was outside ever oh I as I I think I said I mean he said the What he said was that um he it was his best guess that most of the cells were packed with about a hundred people i asked him why he said when they take a roll call uh in during the day people have to call out their names from different cells as I said in his cell I believe there were about 25 people uh until he was he was moved as I said while he wasn't fearful of the other prisoners in his own cell uh he was fearful about the taunts that he received from other prisoners um in in CC what do you think you would achieve with this trip and and what next in terms of actually send well the first thing was to um accomplish what his mother and family were really desperate to learn which is that um he's alive and heard a thing uh about him uh that for someone who's you know he's obviously in a terrible situation as I said he's experienced trauma he said he's sad every day uh but I think this persistence resulted in having this chance to meet with him to begin to get a little bit of his story uh and I think it is the first step to ultimately bringing him home as the constitution requires did you have a sense of his health his wellbeing did you sense get any i did not get that that sense um look you you never know but um I asked him if he was okay uh he said yes he said he he had he has a think a blood pressure condition he has seen a doctor um so you know on a very cursory examination u okay now I I will say just to be clear um there was some negotiation about the terms of this meeting and he he was we were kind of surrounded by video cameras um so I do want to I do want to say that that was the the setting he was in i should also just say you know I'd mentioned the fake margarita they actually wanted to have the meeting by the side of the pool right in this hotel just right I mean this is a guy who's been in SEC this is a guy who's been detained they want to create this appearance that life was just lovely uh for which of course is a big conversation the last 48 hours I know you've been busy with Trump administration officials was there any administration uh I have not i I did have a meeting with the folks at the American Embassy there and I I really want to applaud them and every member of the foreign service and state department in El Salvador and everywhere around the world i I co-chair the foreign service caucus um and I have a deep appreciation for what they do i asked them if they had received any instruction from Washington to help facilitate the release of the answer was no i asked them if they had made any attempt to reach out to the answer so it's very clear that the President Trump administration are blatantly flagrantly dis disagreeing with buying the order from the Supreme Court senator can you talk about who from the Salvadorian government contacted you to facilitate this meeting you mentioned that there were terms associated with the meeting were you told not to reveal any details from the meeting until you came back to the United States and were you at all concerned of your safety in and around this meeting taking place or at any point during so I was not concerned about my safety at this meeting um and I will say you know obviously there's a lot of uncertainty when you're approached by soldiers and have your car pulled over to the side of the road and told you can't go any further uh but I will say that the soldiers acted professionally okay um in their encounter uh with me they had their orders they implemented their orders uh in terms of I'm sorry what was about the the meeting how the meeting came to be who contacted you so um the the meeting they reached out um to say they would meet the Salvadorian government i look in El Salvador everything happens because says it could happen and if you look at the video he sent out right afterwards with the fake margaritas you can see that all of that was a setup okay so that's why and as to how I was notified it was their message was transmitted to me through the embassy senator agreement right here and then I'll go right there the the response from Republicans to your visit is that you care more to me with Abrago Garcia than you do with Rachel Mo who is the mother of a woman who died in in your state what is your response to that criticism well my response is that my my heart goes out to the family Rachel uh as I said at the time my heart breaks for what happened to them that should not happen to any family in America and I am very glad that a court of law convicted her for killing and is going to punish for killing in a court of law the reason we have courts of law are to punish the guilty but also to make sure that those who have not committed crimes are not found guilty and arbitrarily detained in other words everybody has due process so the effort by the Trump administration to try to conflate these two issues goes to the heart of what I was just talking about their effort to change the subject but again to the to the Warren family I you know we have three children i cannot imagine losing a child in the heartbreak that cause and it should not happen and my heart breaks for everybody in Maryland or America who has lost a loved one to violence regardless of the perpetration senator in your meeting with the vice president were you able to gain any information about the United States agreement with El Salvador related to the detention facility the terms how much we pay if the government has any say whatsoever what happens inside um so I didn't learn that directly from the vice president but I have learned about the commitments that have been made so the Trump administration has promised to pay El Salvador $15 million uh to detain these prisoners including the illegally abducted uh my best information uh and I pretty good indicates that to date uh they paid out more than 4 million of that uh 15 million as to the terms of an agreement I've not seen an agreement i don't know whether there is an agreement that specifically spells out the terms and conditions here um I am aware that there was some document um that memorialize the payments but again I do not know in any way if it goes through the details senator what Senator what's the next step here in light of the defiance from the Trump administration what does Congress do so you know everybody um asks those of us who are Democratic senators uh whether there's any bottom line where Republican senators um will say enough's enough and won't simply become won't simply continue to be rubber stamps for the Trump administration so far we haven't hit bottom um in this case we have what I believe is an outright defiance of the Supreme Court people still may want to hang their hat on the fact that it hasn't been completely adjudicated as you know the federal district court judge has ordered depositions of the administration officials uh the Trump administration appealed it that's what the fourth circuit decision was all about that may well go to the Supreme Court i don't know the Trump administration that so the question is is there any point when the president is violating the constitution that says that Republicans will stand up for the constitution rather than just continue to do the bidding of the Democrats in when it comes to Congress but let me say something on that not totally political because appropriations need to go through the Congress and that $15 million you can be sure we're going to be looking for where it is because that wasn't authorized in previous appropriations we're operating under a continuing resolution now they may try to pretend they can transfer that but there's some indication that they were planning anyway until now to make that as part of their request and you can be sure that I won't support the use of one penny of taxpayer dollars to keep a Brago Garcia illegally to take in El Salvador and so as part of that process yes Democrats at least in the Senate have some sway now I will say want to say something about the government of Alv they are making a huge mistake you know they want to brand themselves as a country for technology you know the president said you know Bitcoin is legal tender but now what they're branding themselves as as the place for these huge prisons where people who are illegally deducted excuse me illegally abducted are warehoused that is not a good look there are also other things Americans can do with respect to economic pressure people can stop traveling actually tourism's been going up they can stop traveling there may be states that decide you know they don't want any of their pension funds invested in companies that invest in a place like El Salvador so there are many things that can be done and I I just urge the president of El Salvador the vice president of El Salvador to rethink whether they want to become place it just gets paid off for being complicit in this illegal scheme senator two more right here why did the Salvadorian government reverse itself on allowing you to meet with Mr garcia after telling him no and also do you have a sense of why the government transferred Mr garcia from CPA to this other president well I think the the reason they um relented is pretty clear they were feeling the pressure i mean they were feeling the pressure because while I was in El Salvador we had two major press conferences that included the local press who reported on this and I think that they decided that it was not a good look to continue to detain Al regular without anybody having access to him there's no other explanation for the fact that they said no no no no no no and then prevent you going to bring it back to prison so that's why um I'm sorry what was the second question the second part why don't why did they transfer oh well I I mean number one I will say my main request was to meet with him and as I said he's no longer at SEC so he's in a different prison which is pretty far outside of San Salvador but in addition to that I didn't even know that i mean so we all thought he was at SEC i mean until I met with him thought it was that's why I tried to go to Scon so I think that's why they brought he wasn't brought to to see Senator what action you advocate your party taken to prevent future deportations like this the White House was involved at all in facilitating this meeting i do not i do not do you think I have no basis for that have you spoken to any of your colleagues who say that they plan to go down now that the president received to shut the door let you meet with them but instead he's going back in detention and will not return have you spoken to them and what they hope to accomplish going forward so I I've told the vice president of El Salvador that I may be the first senator member of Congress to be in El Salvador to come down to El Salvador uh but I won't be the last um and uh there are others coming i I've got to give them a call after uh this meeting to brief them on my trip but this goes back to the fact that you know El Salvador is making a big mistake president making a big mistake in being complicit in this illegal scheme how long we met for over half an hour there was there was no What else can your Democratic colleagues do to prevent future illegal deportations like this you mentioned the international covenant of civil and political rights do you think that and El Salvador is a party to that do you think that your mentioning of that is part of what facilitated i think it could have been a factor because they are in blatant violation of uh that requirement that international law requirement not only in this case but actually in all of these cases because I said the the policy at that prison SECOT is to have no communication not with your lawyer not with your family with nobody that is a violation of international law and as I mentioned El Salvador is a signatory to that thank you all very much for being here and [Music] [Music] [Music] [Music] Heat hey hey hey heat [Music] heat hey hey hey [Music]
SHOCK RULING: Supreme Court issues SURPRISE decision against Trump Brian Tyler Cohen Apr 19, 2025 The Legal Breakdown with Glenn Kirschner
Legal Breakdown episode 514: @GlennKirschner2 discusses a late night decision against Trump by the Supreme Court.
Transcript
[Brian Tyler Cohen] You're watching the legal breakdown. Glenn, we've got some major news handed down by the Supreme Court late last night against Donald Trump. Can you explain what just happened?
[Glenn Kirschner] Yeah Brian, this is not hyperbole. On the Richter scale of 1 to 10 on legal procedural and constitutional developments, this is like a 17! This is enormous. Because the Supreme Court basically just said, "We're not even going to wait for what the lower courts, including the Fifth Circuit Court of Appeals says about this, we are telling the Trump administration to stop right now. STOP THE UNCONSTITUTIONAL DEPORTATIONS OF VENEZUELAN MIGRANTS. So let's back up and talk about how we just got this stunning, and I think potentially unprecedented ruling from the Supreme Court.
So late last night the courts got wind that it looks like the Trump administration is basically just going to completely disregard everything that's been coming out of the courts including the Supreme Court and just unconstitutionally start deporting Venezuelan immigrants again to El Salvador so a couple of things happened in rapid succession one some of the plaintiffs ran back to the federal court in DC judge Boseberg and they tried to put a stop to what looked like some more imminent unconstitutional deportations judge Boseberg not surprisingly said "Listen I am sympathetic to your cause but given what the Supreme Court said it doesn't look like I have jurisdiction to put a stop to this." So what happened so the the ACLU representing a a group a class of these Venezuelan immigrants filed something with the fifth circuit court of appeals now that's the federal appeals court that covers Texas among other states where these uh immigrants are being held and the Supreme Court in really a mindblowing development in the middle of the night or in the early morning hours issued a ruling a one paragraph ruling first of all let me read just a portion of it for our viewers the government meaning the Trump administration is directed not to remove any member of the puditive class of detainees from the United States until further order of this court now the one paragraph Supreme Court ruling also notes look we know you filed something with the Fifth Circuit we're not even going to wait for anything further before we put this temporary stop to what by all accounts are unconstitutional deportations and they said "Look the United States solicitor general can file something with us as soon as possible but we're putting a stop to it right the f now." my characterization they didn't say the F but it this is such an earthshattering development because it looks like somebody has finally prodded the Supreme Court into wakefulness to give a damn about the constitutional protections that we all enjoy including the Venezuelan immigrants and they're done playing these stupid reindeer games with the Trump administration and it it looks like now this is going to set up a battle royale that will potentially you know send us off the cliff of a constitutional crisis but the good news is we're not there yet so Glenn the Supreme Court put a stop to these deportations is it similar to like a temporary restraining order where they say "Okay until we really dig into the merits of this case," or did they rule on the merits of this case and basically say "You can no longer deport these people to Venezuela?" Yeah that's a great question and a little bit of a curiosity now the Supreme Court said that they are temporarily putting a stop to it a stay to it but they almost sort of forewent all of the procedural and legal nicities of waiting for the fifth circuit court of appeal to rule waiting to see what the solicitor general what the DOJ what the Trump administration said about all of this what its position was you know this was almost a sort of reflexive knee-jerk move by the Supreme Court that apparently at least seven of the nine justices believed was necessary to protect the the the integrity of the Constitution and the rights provided therein specifically due process rights so they kind of decided to abandon all procedural nicities and just issue this in the middle of the night telling the Trump administration stop it right the f now so it's hard to say well technically is this a TTRO is it a preliminary in it it's an an edict of the Supreme Court that is the word that remember a few days ago Justice Sotomayor used saying threatening we will hand down an edict and if you all don't obey with it there's going to be hell to pay glenn what do you make of the fact that I'm going to ask two questions here what do you make of the fact that it was a 7-2 ruling meaning Kavanaaugh Gorsuch and Amy Coney Barrett um agreed with the liberal block of the court a agreed and and created this pro-democracy proconstitution faction of the court and what do you make of the fact that even still even in a ruling where Barrett uh Kavanaaugh Gorsuch agreed with with um with the liberal members of the court that Clarence Thomas and Samuel Leo still opted to descent yeah Brian to answer part one of your question Kavanaaugh Gorsuch Amy Coney Barrett and let's not forget Chief Justice John Roberts crossed over joined the what we traditionally call the liberal block of the court what that tells me Brian is that this is a constitutional bridge too far even for those four justices who often are willing to side with Donald Trump in ways that run contrary to both the the language and the spirit of the Constitution it looks like those four justices said you know what there are there are some unconstitutional acts by the Trump administration that even we cannot endure or endorse that is a good thing particularly because of the dramatic nature of the way they reached this decision at light speed without even waiting for the parties to fully brief it up so I think that bodess well moving forward then part two of your question what does it say that Alito and Thomas said "Oh come on constitution constitution we dissent and Justice Alto will be issuing opinion in the near future." It tells me that those two justices don't give a rat's ass about the Constitution the expressed guarantees of the Constitution or what the Trump administration chooses to do to immigrants they can mistreat them violate their rights you know kidnap them and send them to foreign prisons and it looks like neither Alito nor Thomas care one wit about their rights or their constitutional protections glenn this is a Supreme Court that feels almost obsessed with process i mean often times by the time it actually gets to the Supreme Court and they actually dain to weigh in it might just be some procedural matter and they don't even they don't even weigh in on the merits because they're just so focused on on these process elements and so what does it say that not only did they did they rule here on the actual issue at hand but they jumped over the fifth circuit and didn't even wait for that process to play itself out it says they're trying to save our democracy and sort of salvage salvage some shred respectability for their own position for the for the legitimacy of the Supreme Court and for our constitutional guarantees brian think about it it was just a few days ago that in the Abbrego Garcia case what was the Supreme Court saying well listen we understand that the judge ordered the Trump administration to facilitate Abrago Garcia's release from that El Salvador in prison and his return but you know we don't know that the judge should also have ordered the um administration to effectuate the return because you know that has a slightly different meaning and if you order the government to effectuate his return you might be trampling on the administration's prerogatives to conduct foreign affairs and now the Supreme Court has said you know what strict dictionary definition of words be damned we're not going to let Donald Trump bring an end to our constitutional construct of government or governance which is represented by what Trump is trying to do and that's the part I want to dig into you how much of a an impact do you think uh Trump's open defiance of the Supreme Court is having now because I understand that all of these cases have to be taken unto themselves that that you can't necessarily um uh discriminate against a certain plaintiff or defendant because of their of their actions or how they comported themselves in a different case but we also live in reality and the Supreme Court can see what Trump just did with the Arbago Garcia case where he basically mocked the Supreme Court with the El Salvador and dictator in the Oval Office by saying "Oh I I I can't I can't do it there's nothing I can do about this how about you?" And then and then Bouay's like "Well I couldn't possibly release him into our country you know like I guess our hands are just tied here with this like wink and a nod the whole time." And so how much of an impact do you think that that whole circus has had on the Supreme Court moving forward in terms of how they deal with the Trump administration you know I think it potentially has three impacts one it alienates the Supreme Court justices and guess what i will be fine if moving forward every Supreme Court edict that's handed down against the Trump administration is a 7 to2 vote let Thomas and Alito get in their expensive motor homes and private jets that are provided at Republican billionaire donors expense and go fishing for the rest of this Supreme Court term i'm fine with that two I think um by openly defying Supreme Court rulings orders and edicts Trump will continue to alienate enormous swats of the American people never mind countries around the world and that can potentially hasten the political demise of Donald Trump and then three and perhaps most importantly I feel like maybe the um Republicans in Congress will need to go into a time machine a way back machine and go to August of 1974 why do I say that because in August of 1974 when the Watergate tapes were revealed and showed in indisputably that Richard Nixon was involved in what by today's standards looks looks like a a quaint little you know criminal scheme a lovely little scandal the Watergate scandal but that was enough to prompt the Republicans particularly in the Senate to march on the Oval Office and say you even though you are a Republican president a leader of our party and the leader of the country you're done you will be impeached and removed the reason I reference that is because at some point what Donald Trump is doing to try to grab all the dictatorial power he can including ignoring Supreme Court president that runs the risk of completely destroying any authority any power any reelection prospects that the Senate Republicans indeed all congressional Republicans might have and if there's one thing I can tell you it is that defying Supreme Court orders rulings and edicts so um requires the impeachment and removal of a president of the United States that we have to stop giving the congressional Republicans a pass because we have you know concluded they have no spines and will never sprout even a vertebra or two i I think the pressure will begin to mount on congressional Republicans to deal with what by all accounts is a president determined to destroy our constitutional nature of government and that you know enures to everybody's detriment including the Senate Republicans well we will of course stay on top of this as Trump has set up kind of yet another constitutional crisis here he already defied the Supreme Court once with this Abrego Garcia case now we have a broader ruling as it relates to the deportation of all of these Venezuelan migrants so we will obviously keep an eye on this again a major move for the Supreme Court to weigh in um even before the Fifth Circuit had the opportunity to do so so with that said for everybody who is watching right now if you want to follow along as this rapidly unfolds please make sure to subscribe the links to both of our channels are right here on the screen i'm Brian Tyler Cohen and I'm Glenn Kersner you're watching the Legal Breakdown [Music]
Habeas Petition 2025-04-16 Overview: President Trump issued a presidential proclamation purporting to invoke the Alien Enemies Act to allow for summary removal of alleged members of the Venezuelan Tren de Aragua (TdA) gang. A class of individuals in US immigration custody seek a writ of habeas corpus to prevent their removal to El Salvador and a declaration that the presidential proclamation is unlawful. The court denied petitioners’ initial request for a temporary restraining order (TRO) on Apr. 17 and petitioners filed a renewed emergency TRO request on Apr. 18.
Case Summary: On Mar. 14, President Trump signed a Proclamation purporting to invoke the authority of the Alien Enemies Act (AEA) to summarily deport Venezuelan nationals alleged to be members of the Tren de Aragua (TdA) gang. On Apr. 16, two Venezuelan individuals using the pseudonyms A.A.R.P. and W.M.M. who are in U.S. immigration custody, filed a habeas petition against Respondents-Defendants Trump, the Department of Homeland Security and others. A.A.R.P and W.M.M. claim to be at imminent risk of removal under the AEA and ask that the court assume jurisdiction over the matter, grant class certification, issue a temporary restraining order to preserve the status quo, and enjoin Respondents from transferring Petitioners and the class of those similarly situated from the district during the pendency of the litigation. Petitioners argue that the government's actions are ultra vires, a violation of the Immigration and Naturalization Act which provides a “sole basis” for such removals, provisions for applying for asylum and withholding, statutory protection against being sent to a country where they could face torture, and the Fifth Amendment due process clause and the right to habeas. Petitioners also ask the court to declare the President’s Proclamation unlawful, grant a writ of habeas corpus enjoining Respondents from removing Petitioners from the district pursuant to the Proclamation, and prevent Respondents from applying the Proclamation to Respondents without giving 30-days’ advance notice and opportunity to respond. Petitioners contend that the Supreme Court in Trump v. J.G.G. vacated a nationwide temporary restraining order that applied to Petitioners, but made clear that review of the Petitioners’ claims was available by habeas and that Petitioners are entitled to due process and reasonable notice in advance of removal. Petitioners assert that the government has made clear that it believes Petitioners are members of TdA and may give them as little as 24 hours notice prior to removal. They argue that the Proclamation is unlawful and that the court’s intervention is necessary so that Petitioners and the putative class are not unlawfully sent to a Salvadoran prison pursuant to the Proclamation. Update 1: On Apr. 17, Judge James Wesley Hendrix denied the Petitioners’ motion for a temporary restraining order. Judge wrote, “The United States answered unequivocally, stating that ‘the government does not presently expect to remove A.A.R.P. or W.M.M. under the [Aliens Enemies Act] until after the pending habeas petition is resolved’ and that ‘[i]f that changes, we will update the Court.’” The court reserved a decision on class certification. Update 2: On Apr. 18, Petitioners submitted a renewed emergency TRO request. Petitioners state, “officers at Bluebonnet have distributed notices under the Alien Enemies Act, in English only, that designate Venezuelan men for removal under the AEA, and have told the men that the removals are imminent and will happen tonight or tomorrow” (emphasis in original).
Plaintiffs also submitted an appeal at the same time to the Fifth Circuit as an appeal to the U.S. Supreme Court.
The district court rejected the motion on the ground that the appeal divested the court of jurisdiction.
Update 3: On late Friday night, Apr. 18, the Fifth Circuit dismissed the emergency appeal. Around 1AM on Saturday, Apr. 19, the Supreme Court issued a stay writing, “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” Justices Alito and Thomas dissented.
35. Apr 18, 2025. MOTION for Leave to File AMENDED CLASS PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CERTIFICATION MOTION filed by A.A.R.P., W.M.M., F.G.M. (Attachments: # 1 Amended Habeas Petition, # 2 Amended Motion for Class Certification, # 3 Amended Brief ISO Motion for Class Certification, # 4 Proposed Order). Party F.G.M. added. Attorney Lee Gelernt added to party F.G.M.(pty:pet) (Gelernt, Lee) (Entered: 04/18/2025)
24A1007 A.A.R.P., ET AL. V. TRUMP, PRESIDENT OF U.S., ET AL.
There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See 28 U. S. C. §1651(a).
Justice Thomas and Justice Alito dissent from the Court’s order. Statement from Justice Alito to follow.
The Supreme Court’s Late-Night Rebuke to Trump Is Extraordinary in More Ways Than One: The court didn’t even wait to let Alito write his dissent. by Mark Joseph Stern slate.com April 19, 2025 2:07 PM https://slate.com/news-and-politics/202 ... ssent.html
https://storage.courtlistener.com/recap/gov.uscourts.dcd.278436/gov.uscourts.dcd.278436.90.0.pdf IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
J.G.G., et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.
Case No: 1:25-cv-00766-JEB
EMERGENCY MOTION FOR IMMEDIATE RULING ON TRO MOTION IN LIGHT OF AEA REMOVALS
Plaintiffs respectfully request that the Court expedite its decision on the pending Motion for Temporary Restraining Order, Dkt. 85, and immediately issue the requested TRO requiring 30 days’ notice before removing a class member under the Alien Enemies Act (“AEA”) from the Bluebonnet facility in the N.D. of Texa. s Late last night and early today, Plaintiffs learned that the government has begun giving notices of removal to class members, in English only, which do not say how much time individuals have to contest their removal or even how to do so. A copy of the notice is attached. And officers last night told class members that they will be removed within 24 hours, which expires as early as this afternoon. Upon information and belief, individuals have already been loaded on to buses. See Brown Decl., Ex. A; Brane Decl., Ex. B. A U.S. government official has also acknowledged that removals are imminent. Laura Romero & Luis Martinez, U.S. planning imminent military deportation flight under Alien Enemies ...
Shortly before 1 a.m. on Saturday, the Supreme Court issued an emergency order halting the Trump administration’s reported efforts to fly Venezuelan migrants to an El Salvador prison before they could challenge their deportation. The court’s late-night intervention is an extraordinary and highly unusual rebuke to the government, one that may well mark a turning point in the majority’s approach to this administration. For months, SCOTUS has given the government every benefit of the doubt, accepting the Justice Department’s dubious assertions and awarding Trump immense deference. On Saturday, however, a majority of justices signaled that they no longer trust the administration to comply with the law, including the court’s own rulings. If that is indeed the case, we are likely careening toward a head-on conflict between the president and the court, with foundational principles of constitutional democracy hanging in the balance.
SCOTUS’s emergency order in A.A.R.P. v. Trump arose out of the government’s unlawful efforts to ship Venezuelan migrants to a Salvadoran prison by invoking the Alien Enemies Act of 1798.On Thursday, lawyers for these individuals told a federal court that the government was preparing tosummarily deport themto El Salvador, where they would be indefinitely confined at a notorious detention center.A federal judge in the Southern District of Texas had already blocked their removal—but the government sought to evade this order by busing the migrants into the Northern District of Texas, where the restraining order would not apply.It then gave these migrants“notices,” in English only, declaring thatthey would be deported immediately, without stating that they could contest their deportations in court. (Officials refused to give these notices, or any other information, to the migrants’ lawyers.) The government intended to fly them out of the country within 24 hours, according to court filings.
This conductflagrantly violated the Supreme Court’s decisionfrom just 12 days ago affording the migrants substantial due process protections. The court unanimously agreed that these individuals “must receive notice” that “they are subject to removal,” and that this notice “must be afforded within a reasonable time and in such a manner as will allow them to actually seek” relief. Obviously, giving Spanish speakers a barebones “notice” in English that they will be deported does not comply with this mandate. But when the migrants’ attorneys sought court intervention, the Justice Department responded as it so often does these days: by lying.Despite extensive evidence to the contrary, DOJ lawyers told multiple courts thatthey did not intend to deport migrants on Friday or Saturday, and that they would not deport anyone without affording them the due process guaranteed by SCOTUS. Two different federal judges declined to step in on Friday night, finding they did not have authority to do so.
The ACLU then begged the Supreme Court for help. And the court obliged. The majority directed the government “not to remove” any of the individuals seeking relief “until further order of this court.” As a result, the government was unable to deport the migrants to El Salvador—as it appeared about to do—and they remain in U.S. custody. Only Justices Samuel Alito and Clarence Thomas noted their dissents.
There are three remarkable aspects of the court’s decision. First, it acted with startling speed—so quickly, in fact, that it published the order before Alito could finish writing his dissent; he was forced to note only that a “statement” would “follow.” It is a major breach of protocol for the Supreme Court to publish an order or opinion before a dissenting justice finishes writing their opinion, one that reflects the profound urgency of the situation. Relatedly, awkward phrasing in court’s order may imply that Alito—who first received the plaintiffs’ request—failed to refer it to the full court, as is custom, compelling the other justices to rip the case away from him. No matter what, exactly, happened behind the scenes, it’s clear that a majority would not let Alito hold up speedy action. It also acted before the U.S. Court of Appeals for the 5th Circuit had a chance to step in, and before the Department of Justice had an opportunity to respond to the plaintiffs. These highly abnormal moves also reveal a desire to act fast.
Second, it is plain as day that the Supreme Court simply did not trust the Trump administration’s claims that it would not deport migrants over the weekend without due process. If the court did believe these representations, it would not have acted in such a rapid and dramatic fashion; it could have waited for the lower courts to sort through the matter, confident no one would face irreparable harm in the meantime. The majority’s decision to wade in straightaway points to a skepticism that the Justice Department was telling the truth. It’s damning, too, that the majority did not even wait for DOJ to file a brief with the court before acting. The only plausible explanation for the court’s order is that a majority feared the government would whisk away the migrants to El Salvador if it did not intervene immediately. That fear is well-grounded, since we now have substantial evidence that the government lied to a federal judge last month to thwart a court order stopping deportation flights.
Finally, and perhaps most obviously, it’s critical that only Thomas and Alito noted their dissents. When the court takes emergency action, justices don’t have to note their votes, but they usually do; we can probably assume that this order was 7–2. That would mean that Chief Justice John Roberts—along Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—joined this rebuke to the Trump administration. Until now, all of these justices have, to varying degrees, treated the president with kid gloves, handing him a series of narrow wins on procedural grounds that avoided direct collision between the branches. That accommodation came to an abrupt stop on Saturday.
And that’s the most encouraging sign we’ve seen from the Supreme Court since Jan. 20. For too long, the Republican-appointed justices have awarded Trump the presumption of regularity, assuming they can trust the representations made by his Justice Department. It has crafted compromises that save face for the president and stop short of unambiguously ordering him to follow the law. Meanwhile, a growing number of lower courts have pleaded with SCOTUS to see the painful reality—that this president will gleefully defy judicial orders; that his DOJ will shamelessly lie; that if the Supreme Court does not put an end to his rampage, it will sap the entire federal judiciary of its remaining independence and authority. Saturday’s order gave us, not a moment too soon, the first sign that a majority of justices have gotten the message and are ready to respond accordingly.
A.A.R.P. and W.M.M., on their own behalf and on behalf of all others similarly situated,
Petitioners–Appellants,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, PAMELA BONDI, Attorney General of the United States, in her official capacity; KRISTI NOEM, Secretary of the U.S. Department of Homeland Security, in her official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; TODD LYONS, Acting Director of the Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MARCO RUBIO, Secretary of State, in his official capacity; U.S. STATE DEPARTMENT; JOSH JOHNSON, in his official capacity as acting Dallas Field Office Director for U.S. Immigration and Customs Enforcement; MARCELLO VILLEGAS, in his official capacity as the Facility Administrator of the Bluebonnet Detention Center; PHILLIP VALDEZ, in his official capacity as Facility Administrator of the Eden Detention Center; JIMMY JOHNSON, in his/her official capacity as Facility Administrator of the Prairieland Detention Center; and JUDITH BENNETT, in her official capacity as Warden of the Rolling Plains Detention Center;
On Appeal from the United States District Court for the Northern District of Texas (Case No. 1:25-cv-59-H) _____________________________________________________________
PETITIONERS’ OPPOSED EMERGENCY MOTION FOR A TEMPORARY ADMINISTRATIVE INJUNCTION AND AN INJUNCTION PENDING APPEAL OR A WRIT OF MANDAMUS
The undersigned counsel of record certifies pursuant to Fifth Circuit Rule 27.4 and Rule 28.2.1 that the following listed persons and private entities have an interest in the outcome of this case, including all private practice lawyers and private law firms currently engaged in this litigation. Pursuant to the fourth sentence of Rule 28.2.1, government officials and entities are not included in this certificate. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.
Petitioners–Appellants (movants in the present motion): A.A.R.P. and W.M.M., represented by American Civil Liberties Union Foundation attorneys Lee Gelernt, Daniel Galindo, Ashley Gorski, Patrick Toomey, Omar Jadwat, Hina Shamsi, Sidra Mahfooz, Oscar Sarabia Roman, My Khanh Ngo, Noelle Smith, and Cody Wofsy; and American Civil Liberties Union Foundation of Texas attorneys Brian Klosterboer, Thomas Buser-Clancy, Savannah Kumar, Charelle Lett, Ashley Harris, and Adriana Piñon.
Defendants–Appellees are government officials and entities.
NATURE OF EMERGENCY AND RELIEF SOUGHT
Petitioners-Plaintiffs (“Petitioners”) and the proposed class seek emergency relief in light of developing and alarming circumstances in the Northern District of Texas. Starting yesterday evening, proposed class members have been given notices designating them as alien enemies under the Alien Enemies Act (“AEA”), and they are being told that they will be imminently removed under the AEA, as soon as this afternoon. DHS has now publicly announced that AEA removals are imminent.1 The notices are in English only and do not inform proposed class members of their right to contest the designation in a federal court. The government has refused to give any information to undersigned counsel for the proposed class, and as far as Plaintiffs know, the government is not giving notice to proposed class members’ immigration attorneys.
Removal without sufficient notice and time to seek habeas relief is in clear violation of the Supreme Court’s decision on the Alien Enemies Act from April 7, 2025 in J.G.G. v. Trump. The district court has not acted on Petitioners’ emergency request for a TRO in light of yesterday evening’s events. Plaintiffs therefore respectfully request an immediate order from this Court barring any removals of proposed class members. Without this Court's intervention, dozens or hundreds of proposed class members may be removed to a possible life sentence in El Salvador with no real opportunity to contest their designation or removal.
Another district court in the Fifth Circuit has issued a district-wide TRO for the Southern District of Texas. In that case, Judge Rodriguez issued the TRO because there was a risk that individuals might not get sufficient notice given the government’s refusal to provide specificity or rule out that it may give as little as 24 hours’ notice, even though notices had not yet been issued. J.A.V. v. Trump, No. 25-cv-72 (S.D. Tex 2025).
This case stems from a Proclamation signed on March 14, 2025, in which the President invoked a war power, the Alien Enemies Act of 1798 (“AEA”), to summarily remove noncitizens from the U.S. and bypass the immigration laws Congress has enacted. See Invocation of the Alien Enemies Act (Mar. 15, 2025) (“Proclamation”).2 The AEA permits the President to invoke the AEA only where the United States is in a “declared war” with a “foreign government or nation” or a "foreign government or nation” is threatening to, or has engaged in, an “invasion or predatory incursion” against the “territory of the United States.” The Proclamation targets Venezuelan noncitizens accused of being part of Tren de Aragua (“TdA”), a criminal gang, and claims that the gang is engaged in an “invasion and predatory incursion” within the meaning of the AEA.
On the evening of March 15, a D.C. District Court issued an order temporarily pausing removals pursuant to the Proclamation for a provisionally certified nationwide class. J.G.G. v. Trump, No. 25-5067, 2025 WL 914682, at *2 (D.C. Cir. Mar. 26, 2025). The D.C. Circuit denied the government’s motion to vacate that TRO.
On April 7, in a 5-4 decision, the Supreme Court granted the government’s application to vacate the TRO order on the basis that Plaintiffs had to proceed through habeas, without reaching the merits of whether the Proclamation exceeds the President’s power under the AEA. In doing so, however, the Court emphasized that individuals who are designated under the AEA Proclamation are “entitle[d] to due process” and notice “within a reasonable time and in such manner as will allow them to actually seek habeas relief” before removal. Trump v. J.G.G., No. 24A931, 2025 WL 1024097, at *3 (U.S. Apr. 7, 2025).
In accordance with the Supreme Court’s ruling, Petitioners filed this habeas action in the Northern District of Texas on behalf of themselves and a proposed class on April 16. A.A.R.P. v. Trump, No. 1:25-cv-59-H, ECF No. 1. Petitioners simultaneously moved for a temporary restraining order and to certify a district-wide class. Id. at ECF Nos. 2, 3. Petitioners sought class-wide relief enjoining their imminent removal without adequate notice because the government had begun moving Venezuelan noncitizens around the country to Bluebonnet Detention Facility in Anson, Texas, without meaningful explanation, and had not indicated the type of notice it intended to provide those designated under the AEA nor how much time it would give individuals before seeking to remove them to El Salvador or another country under the AEA. Moreover, in a hearing in the Southern District of Texas on Friday, April 11, the government said it had not ruled out the possibility that individuals would receive as little as 24 hours’ notice before removal—which would deprive them of the “reasonable time” and “due process” required by the Supreme Court’s order. Trump v. J.G.G., No. 24A931, 2025 WL 1024097, at *3 (U.S. Apr. 7, 2025).
On April 17, the district court in this case issued an order denying Petitioners’ TRO. The court found no risk of summary removal because “the government does not presently expect to remove [the named Petitioners] pending resolution of their habeas petition.” ECF No. 27 at 1. But the government provided no assurances with respect to other putative class members. The district court nonetheless stated: “the Supreme Court’s opinion in J.G.G., along with the government’s general representations about the procedures necessary in these cases, strongly suggest that the putative class is also not facing such an imminent threat ….” Order at 9 (ECF No. 27). Since the district court denied the TRO, Petitioners have learned that officers at Bluebonnet have distributed notices under the Alien Enemies Act, in English only, that designate Venezuelan men for removal under the AEA, and have told the men that the removals are imminent and will happen today. See ECF No. 30-1 (Brown Decl.). These removals could therefore occur at any moment.3
Petitioners submitted a copy of the notice to the district court, ECF Nos. 34-1. 34-2, and attach it as a copy here. It states that the noncitizen has been designated an alien enemy under the AEA. It gives no timeframe for the removal. It does not inform the noncitizen how long they have to contest their designation or even how to do so. Nor does it provide notice of the opportunity for judicial review or permit the designee to indicate that they intend to contest their designation. It says only that “[ i]f you desire to make a phone call, you will be permitted to do so.” The notice is in English despite the fact that the overwhelming number of people designated under the AEA speak only Spanish.
Attorneys whose clients are detained at Bluebonnet have reported that their clients are receiving these notices and being told deportation is imminent. As detailed in the Brown Declaration, in the hours after the district court’s order on the TRO, Attorney Brown’s client, F.G.M., was approached by ICE officers, accused of being a member of Tren de Aragua, and told to sign papers in English. ECF No. 30-1 (Brown Decl.) ¶ 3. F.G.M. understands only Spanish, and he refused to sign. ICE told him the papers “were coming from the President, and that he will be deported even if he did not sign it.” Id. Another Venezuelan man who is detained at Bluebonnet and speaks English then read the notice to Attorney Brown, and the notice tracks the language of the Alien Enemies Act: “In the notice, it classified F.G.M. as a TdA gang member” who “must be removed” from the United States. Id. F.G.M., like other men against whom the Alien Enemies Act has already been used, does not have a final order of removal and is therefore not removable under the immigration laws. See id. The notice was not provided to counsel by the government, not did the government inform Attorney Brown that her client was being designated under the AEA.
In addition to Brown’s client, immigration lawyers and family members have reported that dozens if not hundreds of Venezuelan men were moved to the Bluebonnet facility. They are reporting that the forms are being passed out widely to the dozens of Venezuelan men who have been brought there over the past few days. ECF No. 30-2 (Brane Declaration); see also ECF No. 30-3 (Collins Decl.); see also ECF No. 34-4 (Petty Decl.); ECF No. 34-3 (YSGC Decl.). Lawyers have not been provided with the form or told that their clients were being designated under the AEA.4
These circumstances appear strikingly similar to the government’s initial efforts to avoid judicial review of its summary removals. There, the government issued the Proclamation publicly just hours before it “rushed to load people onto planes and get them airborne” in “an attempt to evade an injunction and deny those aboard the planes the change to avail themselves of judicial review.” J.G.G. v. Trump, 1:25-cv-766 (D.D.C. Apr. 16, 2025), ECF No. 81 at 42; see also id. at 41 (“From the opening hours of Saturday, the Government’s conduct betrayed a desire to outrun the equitable reach of the Judiciary.”). Although the government has since acknowledged that notice is required, it has suggested that as little as 24 hours notice is sufficient to satisfy due process, see J.A.V. v. Trump, No. 1:25-cv-72, Apr. 11 Oral Arg 7:2-3, and is now preparing to remove individuals imminently, as soon as today, perhaps with less than 24 hours and with no meaningful notice to individuals how to contest their designation, much [less] notice sufficient to actually contest their designation, as the Supreme Court held was necessary in J.G.G.
Given that individuals are now in imminent danger of removal, Petitioners respectfully request that the Court issue a temporary administrative injunction and injunction pending appeal prohibiting removal of any putative class members from the United States pursuant to the AEA Proclamation. The district court declined to act on Petitioners’ renewed emergency application for a class-wide TRO, including their request that it provisionally certify a class to preserve the status quo and the ability of class members to seek habeas review consistent with the Supreme Court’s ruling. See In re Fort Worth Chamber of Commerce, 100 F.4th 528, 535 (5th Cir. 2024) (where context and circumstances required urgent injunctive relief, district court “effectively denied” motion by not promptly ruling on it). If the individuals are removed beforethe district court can act and the putative class members are removed from the country, the district court would be permanently divested of jurisdiction under the government’s position that it need not return individuals, even those mistakenly erroneously removed.5 See All Writs Act, 28 U.S.C. 1651 (court can issue writs necessary to preserve its jurisdiction). And given the brutal nature of the Salvadoran prison where other Venezuelan men were sent under the AEA last month, the irreparable harm to them is manifest.
Accordingly, Petitioners respectfully request a class-wide injunction pending appeal and a class-wide temporary administrative injunction. Significantly, the injunction sought here does not seek to prohibit the government from prosecuting any individual who has committed a crime. Nor does it seek release from immigration detention or prohibit the government from removing any individual who may lawfully be removed under the immigration laws.
LEGAL AND FACTUAL BACKGROUND
I. The Alien Enemies Act
The AEA is a wartime authority that grants the President specific powers with respect to the regulation, detention, and deportation of enemy aliens. Passed in 1798, the AEA, as codified today at 50 U.S.C. § 21, provides:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
This Act has been used only three times in the country’s history and each time in a period of war—the War of 1812, World War I, and World War II. The Act also provides that individuals designated as enemy aliens will generally have time to “settle affairs” before removal and the option to voluntarily “depart.”6 See, e.g., United States ex rel. Dorfler v. Watkins, 171 F.2d 431, 432 (2d Cir. 1948) (“An alien must be afforded the privilege of voluntary departure before the [AG] can lawfully remove him against his will.”).
II. The AEA Proclamation and the Unlawful Removals
On March 14, the President signed the AEA Proclamation at issue here. It provides that “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.” See Proclamation. Although the AEA calls for a “public proclamation,” 50 U.S.C. § 21, the administration did not make the invocation public until around 3:53 p.m. EDT on March 15. As set forth more fully in Judge Boasberg’s opinion, even prior to the Proclamation’s publication the government sought to remove individuals. J.G.G. v. Trump, No. 1:25-cv-766-JEB(D.D.C. Mar. 18, 2025), ECF No. 28-1 (Cerna Decl.) ¶ 5; J.G.G., 2025 WL 890401, at *3 (D.D.C. Mar. 24, 2025) (noting that prior to publication of Proclamation, and after a lawsuit was filed against the summary removals, it appeared that “the Government . . . was nonetheless moving forward with its summary-deportation plans.”)
In addition to claiming that a criminal gang during peacetime satisfies the AEA’s statutory predicates, the Proclamation does not provide any process for individuals to contest that they are members of the TdA and do not therefore fall within the terms of the Proclamation. The Proclamation also supplants the removal process under the congressionally enacted immigration laws, which, among other things, provide a right to seek protection from persecution and torture. See, e.g., 8 U.S.C. §§ 1158, 1231(b)(3), 1231 note.
To date, at least 137 Venezuelan men have been removed under the Proclamation and are now in El Salvador in one of the most notorious prisons in the world, possibly for the rest of their lives. Whether most (or perhaps all) of the class lacks ties to TdA remains to be seen, because Respondents secretly rushed the men out of the country and have provided no information about them. But evidence since these individuals were sent to El Salvador flights on March 15 increasingly shows that many were not “members” of TdA. See J.G.G., No. 1:25-cv-766-JEB, ECF No. 67-21 (Sarabia Roman Decl., Exhs. 4-20) (media reports regarding evidence contradicting gang allegations). Such false accusations are particularly devastating given Petitioner’s strong claims for relief under our immigration laws. Exh. A (Gian-Grosso Decl.) ¶ 6.
The government’s errors are unsurprising, given the methods it is employing to identify members of TdA. The “Alien Enemy Validation Guide” that the government has used to ascertain alien enemy status, requires ICE officers to tally points for different categories of alleged TdA membership characteristics. J.G.G., No. 1:25-cv-766-JEB, ECF No. 67-21 (Sarabia Roman Decl., Exh. 1). The guide relies on a number of dubious criteria, including physical attributes like “tattoos denoting membership/loyalty to TDA” and hand gestures, symbols, logos, graffiti, or manner of dress. But experts who study the TdA have explained how none of these physical attributes are reliable ways of identifying gang members. Id. at 67-3 (Hanson Decl.) ¶¶ 22-24, 27; id. at 67-4 (Antillano Decl.) ¶ 14; id. at 67-12 (Dudley Decl.) ¶ 25.
Experts on El Salvador have also explained how those removed there face grave harm and torture at the Salvadoran Terrorism Confinement Center (“CECOT”), including electric shocks, beating, waterboarding, and use of implements of torture on detainees’ fingers. See J.G.G., 2025 WL 1024097, at *9 (U.S. Apr. 7, 2025) (Sotomayor, J., dissenting); see also J.G.G., No. 1:25-cv-766-JEB, ECF No. 44-4 (Bishop Decl.) ¶¶ 21, 33, 37, 39, 41; id. at 44-3 (Goebertus Decl.) ¶¶ 8, 10, 17. These abusive conditions are life threatening, as demonstrated by the hundreds of people who have died in Salvadoran prisons. J.G.G., No. 1:25-cv-766-JEB, ECF No. 44-3 (Goebertus Decl.) ¶ 5; id. at 44-4 (Bishop Decl.) ¶¶ 43–50. Worse, those removed and detained at CECOT face indefinite detention. Id. at 44-3 (Goebertus Decl.) ¶ 3 (quoting the Salvadoran government that people held in CECOT “will never leave”); Nayib Bukele, X.com post (Mar. 16, 2025, 5:13AM ET) (detainees “were immediately transferred to CECOT . . . for a period of one year (renewable)”).7
III. Petitioners
Petitioner A.A.R.P. is a Venezuelan national who is detained at Bluebonnet Detention Center in Anson, Texas. See ECF No. 2-2 (Blakeborough Decl.) ¶ 2. A.A.R.P. fled Venezuela because he and his family were persecuted there in the past for their political beliefs and for publicly protesting against the current Venezuelan government. Id. ¶ 8. He came to the United States in 2023 with his wife and their son. Id. ¶ 3. He is currently seeking asylum, withholding, and protection under the Convention Against Torture. Id. ¶ 8. His next hearing is scheduled for April 28, 2025, at the Fort Snelling Minnesota Immigration Court. Id. A.A.R.P. was detained while carpooling to work with his wife on March 26, 2025. Id. ¶ 5. ICE has accused A.A.R.P. of having “tattoos and associates that indicate membership in the Tren de Aragua gang” in an I-213. Id. ¶ 6. A.A.R.P. has a number of tattoos including a clock that shows the date and time of his son’s birth, a cross, and the Virgin Mary. Id. ¶ 7. None of these tattoos are related to TdA and A.A.R.P. vehemently denies any connection to TdA. Id. ¶¶ 7-8. Early on April 14, A.A.R.P. was suddenly transferred from the Sherburne County Jail in Minnesota to the Bluebonnet Detention Center despite his upcoming April 28 hearing in immigration court in Minnesota. Id. ¶ 8. A.A.R.P. is at risk of being classified as an alien enemy under the Aliens Enemy Act and summarily deported under the Proclamation to El Salvador. Id. ¶¶ 8, 10.
Petitioner W.M.M. is a Venezuelan national who is also detained at Bluebonnet Detention Center in Anson, Texas. ECF No. 2-3 (D’Adamo Decl.) ¶ 3. W.M.M. fled Venezuela after the Venezuelan military harassed and assaulted him because they believed that he did not support the Maduro regime. Id. ¶ 4. W.M.M. arrived in the United States in 2023, was released on his own recognizance, and filed an asylum application. Id. ¶ 9. Several months later, federal authorities arrested W.M.M. on a misdemeanor warrant for alleged illegal entry into the United States. Id. ¶ 10. At his hearing on the warrant, the government alleged that W.M.M. is affiliated with TdA based on emojis used in W.M.M.’s social media feed, and a comment left by another individual on a social media post. Id. ¶ 11. The government also alleged that W.M.M. was arrested at a residence where an alleged TdA associate was present. Id. W.M.M. denies any connection with TdA. Id. The magistrate judge ordered W.M.M. released from federal criminal custody because the government had not met its threshold burden to show a serious risk that W.M.M. would flee. Id. ¶ 12. The judge noted that the illegal entry case was W.M.M.’s only interaction with a court. Id. The U.S. Marshals released W.M.M. into ICE’s custody on March 17 and subsequently detained [him] for about a month at the Winn Correctional Center in Louisiana. Id. ¶¶ 13-14.
On April 14, W.M.M. was abruptly transferred along with several other Venezuelans to the Bluebonnet Detention Center, where he is now currently detained with Venezuelans transferred from other facilities. Id. ¶ 15. Even though W.M.M. has an individual hearing scheduled in immigration court for August 22, his phone access was abruptly cut off the afternoon of April 15 and he was told he would be imminently transferred again. Id. ¶ 18. W.M.M. is fearful that he will be classified as an alien enemy under the Aliens Enemy Act and summarily deported under the Proclamation to El Salvador. Id. ¶ 19.
Upon information and belief, the government has over the past 24-48 hours transferred Venezuelan men from detention centers around the country—including Louisiana, Minnesota, and California—to the Bluebonnet Detention Center in this District despite their pending removal proceedings in immigration court in other regions. Upon information and belief, people have been transferred in groups of Venezuelan men, and been told that they appear to be on a list with other Venezuelans. Thus, many individuals in this District are at imminent risk of summary removal pursuant to the Proclamation.
LEGAL STANDARD
Federal Rule of Appellate Procedure 8(a) permits an injunction pending appeal upon the movant showing: (1) a strong likelihood of success on the merits; (2) irreparable injury without an injunction; (3) that the balance of hardships supports an injunction; and (4) that the public interest favors such relief. Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir. 2021).
ARGUMENT
I. This Court Has Jurisdiction.
The district court’s denial of Petitioners’ motions for an emergency class-wide TRO are appealable because, as the Supreme Court held, the orders sought may be construed as “appealable injunctions.” See Trump v. J.G.G., No. 24A931, 2025 WL 1024097, at *2 (U.S. Apr. 7, 2025). The Court has jurisdiction to review a denial of such an injunction under 28 U.S.C. § 1292(a)(1).
Petitioners seek an emergency class-wide TRO that enjoins Defendants from removing the named Petitioners and putative class members in the Northern District of Texas under the AEA Proclamation until they have a meaningful opportunity to seek judicial review and challenge Defendants’ efforts to imminently remove them from the United States to a Salvadoran prison or elsewhere without due process. The relief sought here parallels the TROs that AEA detainees sought and obtained in J.G.G. See Trump v. J.G.G., No. 24A931, 2025 WL 1024097, at *1 (“On March 15, 2025, the District Court for the District of Columbia issued two temporary restraining orders (TROs) 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.”). Because of that, the district court’s denial of Petitioners’ motions for an emergency class-wide TRO are similarly appealable here. Id. at *2; see also United States v. Wood, 295 F.2d 772, 778 & n.6 (5th Cir. 1961), cert. denied, 369 U.S. 850 (construing denial of TRO as a final, appealable decision where “substantial rights of the parties” would be “irreparably lost if review is delayed,” and observing as “significant” that “Courts of Appeals have considered the merits of denials of temporary restraining orders in deportation cases, evidently on the theory that unless review is had the entire controversy would be mooted by the deportation of the appellant”); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426 (5th Cir. 1981) (“The denial of a so-called temporary restraining order is properly appealable when entered after a hearing in which all interested parties had an opportunity to participate, thus allowing for full presentation of relevant facts.”).
II. Petitioners Are Likely to Succeed on the Merits.
A. The Supreme Court has held that due process entitles Petitioners to adequate notice and a reasonable opportunity to obtain judicial review before Defendants summarily remove them.
Summary removals without adequate notice or a meaningful opportunity to challenge “alien enemy” designations violate the AEA and due process. As the Supreme Court has now made clear, the government must provide Petitioners and putative class members notice “within a reasonable time and in such a manner as will allow them to actually seek” relief from summary removals under the Proclamation. J.G.G., 2025 WL 102409, at *2 (“detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.”). Because the government seeks to imminently remove class members without adequate notice, reasonable time, or sufficient opportunity to “actually seek” court review as the Supreme Court commanded, an injunction pending appeal and emergency administrative injunction are warranted to ensure that class members receive due process. See J.G.G., 2025 WL 102409, at *2 (“‘It is well established that the Fifth Amendment entitles [noncitizens] to due process of law’ in the context of removal proceedings.”)
The notice the government is providing does not remotely comply with the Supreme Court’s order. At a minimum, the notice must be translated into a language that individuals can understand, for Venezuelans Spanish and English. Most importantly, there must be sufficient time for individuals to seek review. As during World War II, that notice must be at least 30 days in advance of any attempted removal.. See 10 Fed. Reg. 12,189 (Sept. 28, 1945). And it must be provided to undersigned counsel so that no individual is mistakenly removed. See, e.g., Noem v. Abrego Garcia, No. 24A949, 2025 WL 1077101 (U.S. Apr. 10, 2025).
B. Petitioners’ Proposed Class Satisfies the Requirements of Rule 23.
In its April 17 order on Petitioners’ motion for a TRO, the district court stated that it was reserving decision on Petitioners’ motion for class certification. Order at 1, ECF No. 27. Its decision noted that “the Supreme Court’s opinion in J.G.G., along with the government’s general representations about the procedures necessary in these cases, strongly suggest that the putative class is also not facing such an imminent threat as the petitioners allege.” Id. at 9. However, early this morning, Petitioners apprised the district court that putative class members are, in fact, facing imminent removals. See supra. Under these circumstances, the district court has constructively denied Petitioners’ motion for class certification, and Petitioners respectfully request class-wide relief.
Petitioners’ motion for class certification is substantially likely to succeed on the merits. See Mot. for Class Certification (ECF No. 3); Brief of Amicus Curiae Class Action and Habeas Professors, J.A.V. v. Trump, No. 1:25-cv-00072 (S.D. Tex. Apr. 16, 2025) (ECF No. 41).
Petitioners sought to certify the following class under Federal Rules of Civil Procedure 23(a) and 23(b)(2):
All noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation.
The proposed class readily satisfies the requirements of Rule 23.
1. The Proposed Class is So Numerous that Joinder Is Impracticable.
Numerosity is present, as demonstrated by the number of people in the United States that the government has admitted having designated as subject to the AEA Proclamation. See Cerna Decl. ¶ 6, J.G.G. v. Trump, No. 25-cv-766-JEB (D.D.C. Mar. 18, 2025), ECF No. 28-1 (identifying a total of 258 people in the United States who the government believes are TdA members). Additionally, people who were, are, or will be designated as subject to the AEA Proclamation are detained and confined in the Northern District of Texas. Upon information and belief, the government has recently transferred Venezuelan men from detention centers all over the country to the Bluebonnet Detention Center in the Northern District of Texas, and they are at imminent risk of removal pursuant to the Proclamation. Declarations submitted to the district court confirm that multiple Venezuelan men have received AEA notices and are being told they will be deported as soon as today. Further, because ICE continues to “track[] the TdA members who are amenable to removal proceedings,” id., “the class includes unknown, unnamed future members.” Pederson, 213 F.3d at 868 n.11; see also Jack, 498 F.2d at 124 (discussing impracticability of joinder of unknown persons); Phillips v. Joint Legislative Comm. on Performance & Expenditure Review, 637 F.2d 1014, 1022 (5th Cir. 1981) (“joinder of unknown individuals is ‘certainly impracticable’”).
2. Members of the Class Have Common Questions of Law and Fact.
All class members suffer the same injury: violation of their right to due process, unlawful removal under the AEA, and unlawful denial of their statutory rights to the removal and detention procedures contained in the INA. And the class raises common questions that will generate common answers, including whether the Proclamation and its implementation violate the AEA, the INA, and the statutory protections for asylum seekers. Any one of these common issues, standing alone, is enough to satisfy Rule 23(a)(2)’s permissive standard. See Yates v. Collier, 868 F.3d 354, 363 n.6 (5th Cir. 2017) (“we reaffirm that Rule 23(a)(2) requires only that a plaintiff demonstrate at least one common question of law or fact” (citing Wal-Mart Stores v. Dukes, 564 U.S. 338, 359 (2011))). “To satisfy the commonality requirement under Rule 23(a)(2), class members must raise at least one contention that is central to the validity of each class member’s claims.” In re Deepwater Horizon, 739 F.3d 790, 810 (5th Cir. 2014). The proposed class has done so here. Should the Court agree that Respondents likely cannot lawfully remove noncitizens under the AEA because there has, for instance, been no “invasion or predatory incursion” by a “foreign government or nation,” all class members will benefit from the requested relief. And while class members may eventually present individualized defenses to their designation as alien enemies, “this ‘obvious fact does not destroy commonality’” for purposes of addressing these common questions. Valentine, 490 F. Supp. 3d at 1159 (citing Yates, 868 F.3d at 363).
The district court placed great weight on the government’s statement that it “does not presently expect” to remove Petitioners under the AEA “until after the pending habeas petition is resolved,” and that “[ i]f that changes, [it] will update the Court.” Order at 1 (ECF No. 27). Focusing on this representation, the court noted that “petitioners cannot seek relief that is necessary only to class members but not to them as named petitioners,” suggesting that Petitioners may not be appropriate representatives of the class. Id. at 9. But that conclusion misapprehends the nature of Petitioners’ and the proposed class’s claims. Their claims involve numerous common questions of law and fact, their injuries all flow from the unlawful implementation of the AEA, and they seek relief beyond a government representation concerning its present expectation. The government’s representation to the district court does not moot anyone’s claims or alter those facts.
3. The Petitioners’ Claims Are Typical of Class Members’ Claims.
Typicality is satisfied here for largely the same reasons that commonality is satisfied. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011) (“The commonality and typicality requirements of Rule 23(a) tend to merge” (citation omitted). Each proposed class member, including the proposed class representatives, faces the same principal injury (unlawful removal), based on the same government policy (invocation of the AEA), which is unlawful as to the entire class because it violates the AEA itself, as well as the immigration laws and the Constitution.
4. Petitioners and Petitioners’ Counsel Will Adequately Protect the Interests of the Proposed Class.
Here, there are no differences that create conflicts between the named Petitioners’ interests and the class members’ interests. Petitioners will fairly and adequately protect the interests of the proposed class. Petitioners are also represented by experienced counsel with significant experience litigating class actions and cases involving the rights of noncitizens.
5. The Proposed Class Also Satisfies Rule 23(b).
Petitioners here seek class certification under Rule 23(b)(2). Rule 23(b)(2) “was intended primarily to facilitate civil rights class actions, where the class representatives typically sought broad injunctive or declaratory relief against discriminatory practices.” Penson v. Terminal Transp. Co., 634 F.2d 989, 993 (5th Cir. 1981) (citing Advisory Committee Notes, 39 F.R.D. 98, 102 (1966)). Thus, courts in the Fifth Circuit have certified under Rule 23(b)(2) similar classes of individuals subject to restrictive immigration-related policies. See, e.g., Murillo v. Musegades, 809 F. Supp. 487, 503 (W.D. Tex. 1992); ODonnell v. Harris Cnty., No. CV H-16-1414, 2017 WL 1542457, at *1 (S.D. Tex. Apr. 28, 2017). Rule 23(b)(2) is satisfied here because Respondents have acted on grounds that apply generally to the class by subjecting them all to the same Proclamation and attempting to summarily remove them without complying with the AEA, INA and due process. See Yates, 868 F.3d at 366.
C. Alternatively, a Class Should Be Certified Under Habeas Equity Principles.
Every circuit that has addressed the issue has found that a class habeas action may be maintained. See, e.g., U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125–26 (2d Cir. 1974); Bijeol v. Benson, 513 F.2d 965, 967 (7th Cir. 1975); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973); Mead v. Parker, 464 F.2d 1108, 1112–13 (9th Cir. 1972); Napier v. Gertrude, 542 F.2d 825, 827 & n.5 (10th Cir. 1976); LoBue v. Christopher, 82 F.3d 1081, 1085 (D.C. Cir. 1996).
For instance, in Sero, the Second Circuit relied on the Supreme Court’s decision in Harris v. Nelson, 394 U.S. 286 (1969), to “confirm[] the power of the judiciary, under the All Writs Act . . . to fashion for habeas actions ‘appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage,’” and held that “unusual circumstances” provided “compelling justification for allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure.” 506 F.2d at 1125 (citing Harris, 394 U.S. at 299). Adopting a similar approach in Bijeol, the Seventh Circuit found a class habeas appropriate where all prisoners raised an “identical” issue of law and the number of prisoners was “too great for joinder of all to be practical.” 513 F.2d at 968. Likewise, the Eighth and Ninth Circuits reversed district court decisions, holding that a habeas corpus petition may seek relief for an appropriate class. See Mead, 464 F.2d at 1113 (“where the relief sought can be of immediate benefit to a large and amorphous group . . . a class action may be appropriate”); Williams, 481 F.2d at 361 (agreeing with Mead); see also Napier, 542 F.2d at 827 & n.5 (Tenth Circuit noting “class treatment” could be available by the court “apply[ing] an analogous procedure by reference to Rule 23”); LoBue, 82 F.3d at 1085 (noting that “courts have in fact developed such equivalents” of “class actions in habeas”).
Although it has not addressed the availability of class habeas, the Supreme Court has ruled on the merits in multiple class habeas cases, including several recent ones involving immigration detention. See, e.g., Johnson v. Guzman Chavez, 594 U.S. 523, 532 (2021) (class of noncitizens detained in Virginia); Nielsen v. Preap, 586 U.S. 392, 400 (2019) (two classes of noncitizens, one detained in California and the other in the Western District of Washington); Jennings v. Rodriguez, 583 U.S. 281, 290 (2018) (class of noncitizens in the Central District of California, with subclasses for different detention authorities). Courts in the Fifth Circuit have also considered class habeas cases on the merits. See, e.g., Aguilar-Ayala v. Ruiz, 973 F.2d 411, 421 (5th Cir. 1992) (habeas class of noncitizen witnesses challenging government practice of detention over ten days, where government has opposed certification based on mootness and lack of typicality); St. Jules v. Savage, 512 F.2d 881, 882 (5th Cir. 1975) (reversing dismissal and remanding where district court held that each petitioner’s challenge had to be “considering individually” because those inmates “present a single constitutional challenge”); In re Class Action Application for Habeas Corpus on Behalf of All Material Witnesses in W. Dist. of Texas, 612 F. Supp. 940, 948 (W.D. Tex. 1985) (granting summary judgment to class of individuals detained as material witnesses in the Western District of Texas).
The reasoning of these cases confirms why class treatment is not only appropriate but preferred here in light of the vulnerabilities of the class, which consists of detained noncitizens with limited resources and English proficiency, preventing them from bringing their own individual claims. See Sero, 506 F.2d at 1125-26; William B. Rubenstein, Newberg on Class Actions § 3.12 (5th ed. 2017). Class-wide relief is also urgently necessary in light of the government’s failure to comply with the Supreme Court’s clear instruction that individuals must be given sufficient notice and opportunity to seek review. Supra.; see also Mead, 464 F.2d at 1112-13 (“there can be cases, and this is one of them, where the relief sought can be of immediate benefit to a large and amorphous group. In such cases, it has been that a class action may be appropriate[.]”).
III. An Emergency Injunction Preserving the Status Quo Will Prevent Irreparable Injury, Will Not Injure Defendants, and Will Serve the Public Interest.
In the absence of a TRO, Petitioners and the class are at imminent risk of summary removal to places, such as El Salvador, where they face life-threatening conditions, persecution, and torture, and may remain for the rest of their lives, incommunicado. See supra; J.G.G., 2025 WL 1024097, at *5 (“[ I]nmates in Salvadoran prisons are ‘highly likely to face immediate and intentional life-threatening harm at the hands of state actors.’”). That easily constitutes irreparable harm. See Tesfamichael v. Gonzales, 411 F.3d 169, 178 (5th Cir. 2005) (irreparable harm” where petitioners face “forced separation and likely persecution” “if deported”); Huisha-Huisha, 27 F.4th at 733 (irreparable harm exists where petitioners “expelled to places where they will be persecuted or tortured”); Patel v. Barr, No. 20-3856, 2020 WL 4700636, at * 8 (E.D. Pa. Aug. 13, 2020); see also J.G.G., 2025 WL 890401, at *16 (“[T]he risk of torture, beatings, and even death clearly and unequivocally supports a finding of irreparable harm” if Venezuelans are removed under the AEA Proclamation to El Salvador). And Petitioners and the class may never get out of these prisons. See J.G.G., 2025 WL 1024097, at *5; see also supra.
Even if the government instead removes Petitioners or the class to Venezuela, they face serious harm there, too. Many fled Venezuela for the very purpose of escaping persecution there, and have pending asylum cases on that basis. For example, A.A.R.P. and his family were persecuted for their political beliefs and actions protesting against the current Venezuelan government, and he fears persecution if returned. ECF No. 2-2 (Blakeborough Decl.) ¶ 8. Likewise, W.M.M. fled Venezuela because he was harassed and assaulted by the Venezuelan military for his perceived opposition to the Maduro regime, and he is seeking asylum on that basis. ECF No. 2-3 (D’Adamo Decl.) ¶ 4. And returning to Venezuela labeled as a gang member by the U.S. government only increases the danger, as they will face heightened scrutiny from Venezuela’s security agency, and possibly even violence from rivals of TdA. J.G.G., No. 1:25-cv-766-JEB, ECF No. 67-3 (Hanson Decl.) ¶ 28.
Not only do Petitioners and the class face grave harm, thus far the government has tried to execute removals without any due process. See Huisha-Huisha v. Mayorkas, 560 F. Supp. 3d 146, 172 (D.D.C. 2021) (irreparable harm where plaintiffs “face the threat of removal prior to receiving any of the protections the immigration laws provide”). Although the Supreme Court has now made clear that meaningful notice is required under the AEA, J.G.G., 2025 WL 102409, at *2,
Defendants face no comparable harm. Petitioners and the class do not contest Respondents’ ability to prosecute criminal offenses, detain noncitizens, and remove noncitizens under the immigration laws. Cf. J.G.G., 2025 WL 914682, at *30 (“The Executive remains free to take TdA members off the streets and keep them in detention. The Executive can also deport alleged members of TdA under the INA[.]”). Thus, Respondents cannot show how the government’s interests “overcome the irreparable injury to [petitioner] absent a stay, or justify denial of a short stay pendente lite.” Ragbir v. United States, No. 2:17-CV-1256-KM, 2018 WL 1446407, at *18 (D.N.J. Mar. 23, 2018), appeal dismissed, No. 18-2142, 2018 WL 6133744 (3d Cir. Nov. 15, 2018); see also Patel, 2020 WL 4700636, at *9 (noting “any inconvenience to the Government from the brief delay is far outweighed by the threat of irreparable harm to [plaintiff]” and that “[t]he public interest is also better served by an orderly court process that assures that [the plaintiff’s] invocation of federal court relief is considered before the removal process continues.”).
The public interest also weighs in favor of Petitioners. The public has a critical interest in preventing wrongful removals, especially where it could mean a lifetime sentence in a notorious foreign prison. See Nken, 556 U.S. at 436; see also Nunez v. Boldin, 537 F. Supp. 578, 587 (S.D. Tex. 1982) (protecting people who face persecution abroad “goes to the very heart of the principles and moral precepts upon which this country and its Constitution were founded”). That is especially so given the government’s position that it will not obtain the release of individuals mistakenly sent to the notorious Salvadoran prison. See Abrego Garcia, 2025 WL 1021113, at *4. Moreover, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” See Wages & White Lion Inv., L.L.C. v. FDA, 16 F.4th 1130, 1143 (5th Cir. 2021).
IV. The Court Should Alternatively Grant Mandamus Relief.
The extraordinary circumstances here warrant mandamus relief. In deciding whether the writ should issue, courts must consider: “(1) whether the petitioner has demonstrated that it has no other adequate means to attain the relief [he] desires; (2) whether the petitioner’s right to issuance of the writ is clear and indisputable; and (3) whether we, in the exercise of our discretion, are satisfied that the writ is appropriate under the circumstances.” In re Itron, Inc., 883 F.3d 553, 567 (5th Cir. 2018) (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380–81 (2004) (cleaned up)). “These hurdles, however demanding, are not insuperable.” In re Gee, 941 F.3d 153, 158 (5th Cir. 2019) (quoting Cheney, 542 U.S. at 381). In cases such as this, mandamus provides a “useful ‘safety valve[]’ for promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009) (citation omitted).
Moreover, as noted, another district court in the Fifth Circuit has issued a district-wide TRO for the Southern District of Texas. In that case, Judge Rodriguez issued the TRO because there was a risk that individuals might not get sufficient notice given the government’s refusal to provide specificity or rule out that notice might be as little as 24 hours’ notice – precisely what has now happened. J.A.V. v. Trump, No. 25-cv-72 (S.D. Tex 2025).
As discussed above, petitioners have no other means to halt the removals that may divest the courts of jurisdiction to address the enormously important legal questions presented by their claims. Their right to the issuance of the writ is clear and indisputable, as the district court’s refusal to act on an emergency application for temporary restraining order or emergency request for a status conference, and constructive denial of a class-wide TRO, in light of the circumstances was a “clear abuse of discretion that produces patently erroneous results.” In re JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019) (cleaned up). Because of the district court’s constructive denial of Petitioners’ motion for class certification, its denial of Petitioners’ motion for a TRO, and its failure to act on Petitioners’ emergency motion, putative class members are facing imminent removal—without adequate notice and without due process, contrary to the Supreme Court’s command in J.G.G. This Court’s intervention is immediately required to ensure that the courts retain jurisdiction and to prevent manifest irreparable harms.
CONCLUSION
The Court should grant an injunction pending appeal, or immediately grant a temporary administrative injunction or issue a writ of mandamus.
I certify the following in compliance with Fifth Circuit Rule 27.3:
• Before filing this Motion, counsel for Appellants contacted the Clerk’s Office and opposing counsel to advise them of the intent to file this Motion. Counsel also phoned the offices of opposing counsel before filing. • The facts stated herein supporting emergency consideration of this motion are true and complete. • Because Appellants request an injunction pending appeal as soon as practicable and, or alternatively, an immediate temporary administrative injunction, the Court’s review of this motion is requested by April 18, 2025. • True and correct copies of relevant orders and other documents are attached as exhibits to this motion. • This motion is being served at the same time it is being filed. • The names of counsel representing the parties, including contact information of all counsel, are as follows: • Lee Gelernt – [email protected] • Daniel Galindo – [email protected] • Brian Klosterboer – [email protected] • Drew C. Ensign - [email protected] • George M. Padis - [email protected] • Ann Cruce-Haag - [email protected] • Nancy Naseem Safavi - [email protected]
/s/ Lee Gelernt Lee Gelernt
CERTIFICATE OF CONFERENCE
On April 18, 2025, counsel for Appellants conferred with counsel for Appellees, who stated that Appellees oppose the relief requested in this motion and will file a response in opposition to the motion. The filing of this motion was also preceded by telephone calls to the clerk’s office and to the offices of opposing counsel on April 18, 2025, advising of the intent to file the emergency motion.
/s/ Lee Gelernt Lee Gelernt
CERTIFICATE OF SERVICE
On April 18, 2025, this document was served via CM/ECF on all registered counsel and transmitted to the Clerk of the Court. Counsel further certifies that: (1) any required privacy redactions have been made in compliance with Fifth Circuit Rule 25.2.13; (2) the electronic submission is an exact copy of the paper document in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned with the most recent version of Symantec Endpoint Protection and is free of viruses.
/s/ Lee Gelernt Lee Gelernt
CERTIFICATE OF WORD COUNT
This motion contains 7,674 words. It complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface (14-point FONT) using Microsoft Word (the same program used to calculate the word count).
3 Counsel for Petitioners contacted counsel for the government by email at 4:49 pm CT on April 17, 2025, even before hearing about the distribution of notices at Bluebonnet, to ask if the government would make the same representations as to the putative class members as it did for the two named Petitioners. Counsel for the government did not respond to that correspondence. After then hearing that notices were being distributed at the Bluebonnet facility, we again contacted the government, at 6:23 pm CT, to ask whether it was accurate that the government had begun distributing AEA notices to Venezuelan men at the facility. At 6:36 pm CT, counsel for the government said they would inquire and circle back. At 8:11 pm CT, the government responded that the two named Petitioners had not been given notices. We immediately responded that we were inquiring about putative class members. At 8:41 pm CT, the government wrote: “We are not in a position at this time to share information about unknown detainees who are not currently parties to the pending litigation.” The government has continued to decline to provide any information beyond the two named Petitioners and opposed even an emergency status hearing before the district court today.
4 On March 15, at least 137 Venezuelans were removed under the AEA to the CECOT prison in El Salvador. Those individuals were overwhelmingly, if not exclusively, detained at facilities in the S.D. Texas. On April 11, after a hearing, Judge Rodriguez entered a class wide TRO to preserve the status quo and prevent additional individuals from being removed under the AEA. He then ordered expedited preliminary injunction briefing and set a hearing on the P.I. for April 23, 2025. J.A.V. v. Trump, No. 25-cv-72 (S.D. Tex 2025).
5 See, e.g., Abrego Garcia v. Noem, No. 251345, 2025 WL 1021113, at *4 (4th Cir. Apr. 7, 2025) (Thacker, J., concurring); see also Abrego-Garcia v. Noem, No. 8:25-cv-951-Px (D. Md. Apr. 15, 2025), ECF No. 77 ¶ 7 (“DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.”); id. at ECF No. 77-1 (“That’s up to El Salvador if they want to return him, that’s not up to us.” (quoting AG Bondi)).
6 50 U.S.C. § 21 (providing for removal of only those "alien enemies" who "refuse or neglect to depart" from the U.S.); id. § 22 (granting time for departure in accordance with treaty stipulation or "where no such treaty exists, or is in force," a "reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality").
The “Alien Enemy Validation Guide” that the government has used to ascertain alien enemy status, requires ICE officers to tally points for different categories of alleged TdA membership characteristics. The guide relies on a number of dubious criteria, including physical attributes like “tattoos denoting membership/loyalty to TDA” and hand gestures, symbols, logos, graffiti, or manner of dress. But experts who study the TdA have explained how none of these physical attributes are reliable ways of identifying gang members....
ICE has accused A.A.R.P. of having “tattoos and associates that indicate membership in the Tren de Aragua gang” in an I-213. Id. ¶ 6. A.A.R.P. has a number of tattoos including a clock that shows the date and time of his son’s birth, a cross, and the Virgin Mary. Id. ¶ 7. None of these tattoos are related to TdA and A.A.R.P. vehemently denies any connection to TdA....
the government alleged that W.M.M. is affiliated with TdA based on emojis used in W.M.M.’s social media feed, and a comment left by another individual on a social media post. The government also alleged that W.M.M. was arrested at a residence where an alleged TdA associate was present. Id. W.M.M. denies any connection with TdA.
In the case of: ________________________________ A-File No:__________________
1. The person named above is fourteen years or older: □
2. The person named above is not a citizen or lawful permanent resident of the United States: □
3. The person named above is a citizen of Venezuela: □
If any of these three requirements are not satisfied, the person named above shall not be ordered removed under the Alien Enemies Act (AEA). In such a case, you should consult your supervisor and the Office of the Principal Legal Advisor (OPLA), U.S. Immigration and Customs Enforcement, and, where applicable, initiate removal proceedings under the Immigration and Nationality Act (INA).
4. The person named above is validated as a member of Tren de Aragua (TDA), as determined by reference to the following evaluation form:
Instructions: Complete the following validation evaluation form for each suspected alien targeted for removal under the AEA, or, following apprehension, for each alien potentially subject to an AEA removal.
After accounting for the two comments below, aliens scoring 8 points and higher are validated as members of TDA; you should proceed with issuing Form AEA-21B, titled, “Notice and Warrant of Apprehension and Removal under the Alien Enemies Act.” Aliens scoring 6 or 7 points may be validated as members of TDA; you should consult with a supervisor and OPLA, reviewing the totality of the facts, before making that determination; if you determine an alien should not be validated at this time as a member of TDA, when available, you should initiate removal proceedings under the INA. Alien scoring 5 points or less should not be validated at this time as member of TDA; when available, you should initiate removal proceedings under the INA.1
Comment 1: Even if 8 points or higher, if all tallied points for an alien are from the Symbolism and/or Association categories (with no points scoring in any other category), consult your supervisor and OPLA before determining whether to validate the alien as a member of TDA (and proceed with an AEA removal) or initiate INA removal proceedings.
Comment 2: For purposes of validating an alien as a member of TDA, at least one scoring category must involve conduct occurring, or information received, within the past five years.
Valuation Explanation
Category / Definition Explanation / Points
Judicial Outcomes and Official Documents / a. Subject has been convicted of violating Title 18, United States Code, Section 521 or any other federal or state law criminalizing or imposing civil penalties for activity related to TDA / 10
b. Court records (e.g., indictments, criminal complaints, sentencing memorandums) identifying the subject as a member of TDA, describing specific activity of TDA / 5
Self-Admission / a. Subject self-identifies as a member or associate of TDA verbally or in writing to law enforcement officer, even if that self identification to a law enforcement officer is unwitting, e.g., through lawful interception of communications. / 10
Criminal Conduct and Information / a. Subject participates in criminal activity (e.g., narcotics trafficking, human smuggling, etc.) with other members of TDA, including preparatory meetings and significant incidents directly attributed to TDA / 6
b. Law enforcement or intelligence reporting identifying subject as a member of TDA, to include Bureau of Prisons validations and reliable foreign partner information. / 4
c. Credible testimonies/statements from victims, community members, or informants that affirm the subject’s membership in or allegiance to TDA. / 3
d. Detailed open-source media (e.g., newspapers, investigative journalism reports) that describe arrest, prosecution, or operations of a subject as a member of TDA / 2
e. Subject conducts and/or facilitates business with TDA (e.g., money laundering, mule, service provider) / 2
Documents and Communications / a. Written or electronic communications (e.g., e-mails, letters, texts, secure messages) that discuss business with, and/or are communicating with, known members of TDA; cell phone data contains multiple group, organizational, or organization leaders’ or members’ information. / 6
b. Subject conducts phone calls about the business of TDA with known members of TDA / 10
c. Financial transactions indicating criminal activity for TDA or with known members of TDA / 3
d. Subject possesses written rules, constitution, membership certificates, bylaws, etc., indicating, together with other conduct, membership of or allegiance to TDA / 6
Symbolism / a. Subject has tattoos denoting membership/loyalty to TDA / 4
b. Social media posts by the subject displaying symbols of TDA or depicting activity with other known members of TDA / 2
c. Subject observed tagging or graffitiing to mark the territory of, and the subject’s allegiance to, TDA / / 2
d. Subject observed displaying hand signs used by TDA / 2
e. Subject displays insignia, logos, notations, drawings, or dress known to indicate allegiance to TDA, as observed by law enforcement in person or via virtual mediums / 4
Association / a. Surveillance documentation that a subject is frequently observed closely associating with known leaders and members of TDA / 2
b. Subject part of group photos with two or more known members of TDA / 2
c. Subject presently resides with known members of TDA / 2
Total Points □
VALIDATION DETERMINATION
Note: If any of the four requirements are not satisfied, do not complete this validation determination.
Based on the validation guide and instructions above, including Comments 1 and 2, I find that the person named above, _______________________________________________:
1. Is fourteen years or older;
2. Is not a citizen or lawful permanent resident of the United States;
3. Is a citizen of Venezuela; and
4. Is a member of Tren de Aragua.
Accordingly, the above-named person is validated as an Alien Enemy.
_____________________ Signature of agent/officer completing the form
_____________________ Name of Agent/officer completing the form
In the Matter of: _____________________________________________________________
Date of Birth: ________________ Sex: Male □ Female □
Warrant of Apprehension and Removal
To any authorized law enforcement officer:
The President has found that Tren de Aragua is perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States, and that Tren de Aragua members are thus Alien Enemies removable under Title 50, United States Code, Section 21.
________________________________________ (Full Name of Alien Enemy) has been determined to be: (1) at least fourteen years of age; (2) not a citizen or lawful permanent resident of the United States; (3) a citizen of Venezuela; and (4) a member of Tren de Aragua. Accordingly, he or she has been determined to be an Alien Enemy and, under Title 50, United States Code, Section 21, he or she shall immediately be apprehended, restrained, and removed from the United States pursuant to this Warrant of Apprehension and Removal.
Signature of Supervisory Officer: _______________________________
Title of Officer: _______________________________
Date: __________________
Notice to Alien Enemy
I am a law enforcement officer authorized to apprehend, restrain, and remove Alien Enemies. You have been determined to be at least fourteen years of age; not a citizen or lawful permanent resident of the United States; a citizen of Venezuela; and a member of Tren de Aragua. Accordingly, you have been determined to be an Alien Enemy subject to apprehension, restraint, and removal from the United States. You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal. Until you are removed from the United States, you will remain detained under Title 40, United States Code, Section 21. Any statements you make now or while you are in custody may be used against you in any administrative or criminal proceeding. This is not a removal under the Immigration and Nationality Act.
After being removed from the United States, you must request and obtain permission from the Secretary of Homeland Security to enter or attempt to enter the United States at any time. Should you enter or attempt to enter the United States without receiving such permission, you will be subject to immediate removal and may be subject to criminal prosecution and imprisonment.
Signature of alien: ___________________________________
Date:_______________
CERTIFICATE OF SERVICE
_______________
Notes:
1 A tally of 5 points or less, or any decision to initiate INA removal proceedings, is not a finding that an alien is not an Alien Enemy. Relatedly, at any time, additional information may come to light that gives reason to revisit a prior decision to forego an AEA removal.
Gang members use graffiti, hand signs, jewelry, tattoos, clothing, and colors to signify their membership in a gang and to communicate their gang affiliation to others. Each gang has its own unique graffiti, signs, and colors.
HAND SIGNS Are used to communicate within the gang and as a challenge to rival gangs. The signs are made by forming letters and/or numbers with fingers.
TATTOOS Are used to mark one's body as an identifier indicating membership in a particular gang. The tattoos can include the name, initials, street of origin, or symbols of a gang. Some tattoos are professionally drawn while others are homemade. Tattoos can be found on any part of the body, but are commonly found on the hands, arms, chest, back, thighs or ankles.
COLORS Most gangs have particular colors that they use to identify themselves. Many of the gang members will frequently dress in these colors. In Madison, the two colors most associated with gang activity are blue and red.
CLOTHING Some gangs use particular sports team clothing to represent their gang by picking a team that uses the particular colors associated with gangs. They may also pick out a teams clothing because of the symbol represented by that team, such as the five-point star used by the Dallas Cowboys.
JEWELRYGangs are usually divided into two groups, the folks and peoples. Jewelry with a six point star indicate a membership with a gang related to the folks, while a five-point star is associated with peoples.
STREET NAMES Members of gangs use street names with each other. They are used to conceal identification from law enforcement. Sometimes gang members use addressers such as "folks" and "people" when talking to each other.
NOTE: The wearing of particular items of clothing should not be used alone as an indication of gang involvement. Current clothing style imitates gang membership.
WHAT ARE SIGNS OF POSSIBLE GANG INVOLVEMENT?
• Baseball caps are worn distinctively to the left or the right. • Tattoos of stars, pitchforks, or unexplained symbols. • Jewelry, including rings, earrings, and necklaces with nicknames, stars, pitchforks or unexplained initials or symbols. • Money from an unexplained source. • Certain clothes with particular colors and sports team identification which are the only type a child will wear. • New friends that parents are not acquainted with and whom they are not allowed to meet. • Unexplained signs and symbols on books, folders, clothes, bedroom walls and personal belongings. • Truancy or poor progress in school. • Frequent negative contacts with police.
WHAT IS GRAFFITI?
Gang members mark their territory with graffiti, such as Roman Numerals, initials, and other symbols. The markings can range from simple to elaborate. Typically graffiti is used to warn competing gangs that there is a threat of takeover. It is essential to remove graffiti as soon as possible so that it will not be defaced by a rival gang. "Dissing" is done by insulting rival gangs. This occurs when original gang graffiti is crossed out and an opposing gang graffiti written over or next to it, or by graffiti representing the original gang written upside down by the rival gang.
Again it is important to remove the graffiti as soon as possible. Business and property owners should be made aware of graffiti and encouraged to remove it as soon as possible. Graffiti should be reported to your local police or sheriffs precinct as soon as possible.
WHAT CAN YOU DO IF YOU SUSPECT YOUR CHILD IS INVOLVED IN A GANG?
• Don't ignore your suspicions; talk to your child. • Watch for some of the signs mentioned previously. • Listen to conversations your child has with friends or new acquaintances. • Check your child's room periodically for signs and symbols. • Talk to your child's teachers about your suspicions. • Divert your child's attention away from unknown friends and into other activities. • Ask for help from the many community agencies. • Call the police. We will respond to your questions and if desired talk with you and your child about gangs.
*** Do not think that a gang is just a phase. Older gang members use newer gang member or people looking to get into the gang by having them take most of the risk. Large quantities of "crack" cocaine have been found on newer members, while older members refuse to associate with them when they get caught.
WHAT CAN YOU DO TO HELP ELIMINATE GANG ACTIVITY?
• Report all crimes and gang activity to the police. • Identify any suspects to the police, as well as any Street Names. Remember information can be kept confidential. • Remember that we cannot do the job alone and we need the help of those in the community. • A good offense!
The first defense in protecting our kids against gang influence, is a good offense. Just as we warn our kids about the dangers of smoking, alcohol and drugs before we discover evidence of such activity, we must take similar precautions about Gangs - online resources for parents and educators talk to our children about the dangers of gang involvement. That is, making our children aware that gang association of any kind is harmful and will not be tolerated.
Discuss the consequences of being in a gang. We must teach them that they should not associate with gang members, communicate with gangs, hang out where gangs congregate, wear gang-related clothing or attend events sponsored by gangs. We must try to make them understand that the dangers here are real and "just saying no" may save their lives.
What to look out for!
Parents should be alarmed and take appropriate action if a child exhibits one or more of these warning signs. Although we should exercise caution, we need to determine the degree (if any) of a child's involvement. We can assume that a child has some level of involvement wit h a gang if he/she:
• admits that they are involved in any manner with a gang • is obsessed with a particular clothing color • prefers sagging pants or gang clothing • wears jewelry with distinguishing designs (rosary and not being catholic) • Requests a particular logo over others such as, Joker faces, cholo, low-rider designs • adopts an unusual desire for privacy and secrecy • exhibits a change in behavior and conduct and withdraws from the family • is frequently deceitful about their activities • declining grades at school • truancy and/or being late for school • begins keeping late hours • breaks parental rules repeatedly • is obsessed with gangster music or videos • associated with the "wrong crowd" (changes friends) • begins using hand signs with friends • has paint or permanent marker stains on his/her hands or clothes. Or, is in possession of graffiti paraphernalia such as markers, etching tools, and spray paint • show evidence of physical injuries and lies about how they were received • displays unusual drawings or text on school books or displays graffiti in their bedrooms and on items such as books and posters • produces unexplained cash, clothing, jewelry, music CDs, etc. • exhibits use of alcohol or drugs • Be careful!
None of these warning signs alone is sufficient for predicting gang involvement, aggression or tendencies toward violence. Also, it can be detrimental to use these signs as a checklist against which to measure children.
Early warning signs are just that, indicators that a child may need our help and guidance. These are behavioral and emotional signs that, when considered in context, can signal a distraught child.
Early warning signs provide us with a means to examine our concerns and address the child's needs. Early warning signs allow us to get help for the child before problems escalate.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS ABILENE DIVISION
A.A.R.P., on his own behalf and on behalf of all others similarly situated, et al.,
Petitioners-Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Respondents-Defendants.
No. 1:25-CV-059-H
ORDER
Before the Court are the petitioners’ emergency application for a temporary restraining order (Dkt. No. 2) and motion for class certification and appointment of class counsel (Dkt. No. 3). The petitioners A.A.R.P and W.M.M. assert that they “are at imminent risk of summary removal” from the United States. Dkt. No. 2 at 2. To avoid alleged irreparable harm, the petitioners ask the Court, among other things, to enjoin the government from removing them—or any similarly situated detainee in the Northern District of Texas—from the country. Id. The Court asked the government whether it would remove A.A.R.P or W.M.M. pending resolution of their habeas petition. Dkt. No. 8. The United States answered unequivocally, stating that “the government does not presently expect to remove A.A.R.P. or W.M.M. under the [Aliens Enemies Act] until after the pending habeas petition is resolved” and that “[ i]f that changes, we will update the Court.” Dkt. No. 19 at 13. As a result, the petitioners are not at “imminent risk of summary removal,” and they cannot show a substantial threat of irreparable harm. Thus, the motion is denied. The Court reserves decision as to the motion for class certification (Dkt. No. 3).
1. Factual and Procedural History
On March 14, 2025, President Donald J. Trump signed a proclamation under the Alien Enemies Act of 1798 providing that “all Venezuelan citizens 14 years of age or older who are members of TdA [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.” Dkt. No. 1 at 13 (brackets in original).
A.A.R.P., a Venezuelan national, entered the United States in 2023. Dkt. No. 1 at 5–6. He sought asylum and has a hearing scheduled on April 28, 2025, at the Fort Snelling, Minnesota Immigration Court. Id. at 5. ICE detained A.A.R.P. on March 26, 2025. Id. at 5–6. On April 14, 2025, authorities transferred A.A.R.P. from a jail in Minnesota to the Bluebonnet Detention Center in Texas. Id. at 6. According to the petition, ICE contends that A.A.R.P. is a member of TdA. Id.
W.M.M., also a Venezuelan national, was detained when he entered the United States in 2023, but he was later released on his own recognizance. Id. at 6. He later filed an asylum application. Id. Subsequently, federal authorities arrested W.M.M. for illegal entry into the United States. Id. After his arrest, authorities released W.M.M. into ICE custody at the Winn Correctional Center in Louisiana. Id. Authorities transferred him to the Bluebonnet Detention Center on April 14, 2025. Id. at 6–7. W.M.M. has a court hearing scheduled for August 22, 2025. Id. at 7. The petition alleges that ICE believes W.M.M. is affiliated with TdA. Id. at 6.
A.A.R.P. and W.M.M. assert that they may be imminently deported to El Salvador or Venezuela. Id. at 6–7; Dkt. No. 2-1 at 20. They filed their joint petition for a writ of habeas corpus on April 16, 2025. See generally Dkt. No. 1. Neither A.A.R.P. nor W.M.M. has been issued a notice of intent to remove them under the Act. See Dkt. No. 21 at 35.
Contemporaneously with their petition, the petitioners moved for an emergency, ex-parte restraining order against the respondents.1 Dkt. No. 2; see Dkt. No. 1 at 1. The petitioners claim in their motion that the government may remove Venezuelan nationals, such as the petitioners, to El Salvador or Venezuela with less than 24 hours’ notice in a summary proceeding without due process or the opportunity for judicial review, potentially depriving the Court of jurisdiction to hear the petitioners’ habeas claims. Dkt. No. 2-1 at 3–4, 19–20. Once the Court is deprived of jurisdiction, the petitioners assert, they will risk torture, abuse, persecution, and the inability to obtain relief. Id. at 19–20.
The Court ordered the petitioners to provide notice to Chad Meacham, the Acting United States Attorney for the Northern District of Texas or to file a brief explaining why they did not need to provide notice to the respondents of the request for a restraining order. Dkt. No. 8. The petitioners then filed a notice of service as to Acting United States Attorney Meacham. Dkt. No. 11.
The Court further instructed the government to respond to the motion for a temporary restraining order by 4:00 p.m. CT on April 16, 2025. Dkt. No. 8 at 3. The government timely filed its response, Dkt. No. 19, and the petitioners replied, Dkt. No. 22. In addition to various substantive arguments, the government represents that the petitioners’ removal is not imminent. See Dkt. No. 19 at 31–33. The government states that authorities will not remove the petitioners during this litigation, and it will alert the Court if that changes. Id. at 12–13.
2. Analysis
The Court denies the motion because three points undermine the petitioners’ assertion of imminent, irreparable harm. First, the Supreme Court’s recent opinion in Trump v. J.G.G., 2025 WL 1024097 (U.S. Apr. 7, 2025), leaves no doubt that detainees, like the petitioners, are entitled to some level of due process and judicial review. Second, the government’s representations to this Court make manifest that the petitioners will not be removed pending this litigation and that the government will alert the Court if that expectation changes. And third, the petitioners’ desire for more concessions or specific timetables from the government does not sufficiently show imminent, irreparable injury.
Movants seeking preliminary injunctive relief must establish (1) “a substantial likelihood that they will prevail on the merits,” (2) a “substantial threat that they will suffer irreparable injury if the injunction is not granted,” (3) that “their substantial injury outweighs the threatened harm to the party whom they seek to enjoin” and (4) that “granting the preliminary injunction will not disserve the public interest.” City of El Cenizo v. Texas, 890 F.3d 164, 176 (5th Cir. 2018) (quoting Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)). A temporary restraining order is “simply a highly accelerated and temporary form of preliminary injunctive relief,” which requires the party seeking such relief to establish the same four elements for obtaining a preliminary injunction. Hassani v. Napolitano, No. 3:09-CV-1201-D, 2009 WL 2044596, at *1 (N.D. Tex. July 15, 2009). Therefore, the same criteria are applicable to temporary restraining orders. See May v. Wells Fargo Home Mortg., No. 3:12-CV-4597-D, 2013 WL 2367769, at *1 (N.D. Tex. May 30, 2013).
Preliminary injunctive relief is “an extraordinary remedy, not available unless the plaintiff carries his burden of persuasion as to all of the four prerequisites.” Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). “The decision to grant [such relief] ‘is to be treated as the exception rather than the rule.’” Jones v. Bush, 122 F. Supp. 2d 713, 718 (N.D. Tex. 2000) (quoting Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)) (stating that a movant must “clearly carr[y] the burden of persuasion”).
The petitioners ask the Court to decide, “as soon as possible,” see Dkt. No. 2 at 3, whether to restrain the federal government from exercising its immigration powers—a realm in which the political branches, not the judiciary, enjoy substantial power and responsibility. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (noting that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government” and that “[s]uch matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”). And in this context especially, the Supreme Court has recently noted that the Alien Enemies Act largely precludes judicial review. J.G.G., 2025 WL 1024097, at *1. The Court must tread carefully when making such a hasty decision, especially one of significant magnitude. These considerations are why preliminary relief is an exception rather than the rule. And although temporary restraining orders against the government are sometimes justified, the movant must show that there is a substantial threat of irreparable harm without such relief. See City of El Cenizo, 890 F.3d at 176.
The petitioners have not met this burden. First, Supreme Court precedent undermines the petitioners’ assertion of imminent and summary removal without process. Just last week, the Supreme Court outlined the requirements and procedures for these cases. See J.G.G., 2025 WL 1024097, at *2. The Supreme Court noted that, even under the Alien Enemies Act, “an individual subject to detention and removal . . . is entitled to judicial review as to questions of interpretation and constitutionality of the Act as well as whether he or she is in fact an alien enemy fourteen years of age or older.” Id. at *2 (internal quotation marks omitted) (quoting Ludecke v. Watkins, 335 U.S. 160, 163–64 (1948)).
Moreover, the Supreme Court noted that “[t]he detainees’ rights against summary removal . . . [were] not currently in dispute,” as the government “expressly agree[d] that TdA members subject to removal under the Alien Enemies Act get judicial review.” Id. (internal quotation marks omitted). And the Supreme Court further reiterated that “the detainees are entitled to notice and opportunity to be heard ‘appropriate to the nature of the case.’” Id. (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)). “More specifically, in this context, AEA detainees must receive notice after [April 7, 2025] that they are subject to removal under the Act.” Id. The notice must “be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Id. Lest it not already be completely clear, the Supreme Court stated that “[f]or all the rhetoric of the dissents, . . . the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.” Id.
Thus, the Supreme Court has already made clear that the alleged immediate removals prior to notice and the opportunity for judicial review, which form the basis of the petitioners’ motion, are illegal. See id. And the government recognized this reality in the Supreme Court. Id.
Second, the government’s own representations in this case preclude a finding of imminent, irreparable harm. In an attempt to establish that J.G.G. is insufficient to safeguard the rights of the petitioners, they assert that the “[r]espondents have yet to concede that they will provide meaningful notice, much less any sense of when that notice will be provided to individuals or what form it will take.” Dkt. No. 2-1 at 21. As such, the petitioners contend that “there remains an unacceptably high risk that the government will deport [putative] class members who are not in fact members of TdA.” Id.
But the government’s response confirms that it has no present plans to remove either petitioner until the habeas petition is resolved and that it will notify the Court if that changes. Dkt. No. 19 at 12–13. The government once again confirmed its continued belief that “the requirement for judicial review includes a process for affording notice and opportunity to be heard prior to being removed under AEA authority” and that once “that opportunity to be heard has been satisfied, removal may proceed unless a court orders otherwise.” Id. at 13. The government further provided a declaration from Yousef Khan, Assistant Field Office Director for the United States Department of Homeland Security, Immigration and Customs Enforcement, who stated that “ICE does not intend to remove A.A.R.P. or W.M.M. under the AEA while their habeas petitions are pending.” Dkt. No. 21 at 35. The petitioners, in contrast, have pointed to no instances of the government attempting to remove individuals under the Act without sufficient notice or process after the Supreme Court entered its order and opinion in J.G.G., and neither have they pointed to affirmative representations by the government that it will do so in the immediate future.
Given this record, the Court has no basis upon which to believe that the government is going to defy the Supreme Court’s clear directives in J.G.G. or the government’s own representations to the Supreme Court and to this Court. Thus, in light of J.G.G. and the government’s representations in its response (Dkt. No. 19), the petitioners’ conjecture is too speculative to support the exceptional remedy requested.
Third, the fact that the government has “yet to concede” its obligation to provide meaningful notice is insufficient to affirmatively show that the government is going to commit the acts feared. See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1 (3d ed. 2025) (noting that there must be a “likelihood that irreparable harm will occur” and that “[s]peculative injury is not sufficient”); Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (noting that “[ i]ssuing a preliminary injunction based on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy”); Morrell v. City of Shreveport, 536 F. App’x 433, 435 (5th Cir. 2013) (noting that “speculative injury is not sufficient”); see also Dkt. No. 21 at 25–26. In any event, the petitioners asserted this argument before the government affirmed before this Court its agreement that it must provide notice that allows “a reasonable time to file” a habeas petition. See Dkt. No. 19 at 13.
The petitioners’ reply brief (Dkt. No. 22) likewise contends that the government’s assurances are insufficient because the government is still not committing to provide substantially more than 24 hours’ notice. Dkt. No. 22 at 4–5. The petitioners believe that 30 days’ notice is necessary. Id. at 5. But the government’s decision not to commit to a specific or longer period of notice does not support the petitioners’ contention that they are at imminent risk of irreparable harm. The government has committed to allowing for due process and judicial review, specifically stating that it has no intention to remove the petitioners before the Court resolves their habeas petition. Dkt. Nos. 19 at 12–13; 21 at 25–26. In addition, the Supreme Court’s opinion in J.G.G., along with the government’s general representations about the procedures necessary in these cases, strongly suggest that the putative class is also not facing such an imminent threat as the petitioners allege. In any event, the petitioners cannot seek relief that is necessary only to class members but not to them as named petitioners. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348–49 (2011) (explaining the importance of named plaintiffs being representative of the members of the class). Moreover, despite the lack of a specific notice period, the government has agreed that it will provide meaningful notice. See Dkt. No. 19 at 13, 24–25. That the government has not provided a specific notice period does not mean the government will provide notice insufficient under J.G.G. in the immediate future to detainees.
Under these circumstances, the Court finds that the petitioners have failed to meet their “heavy burden” to show a substantial threat of irreparable harm. Enter. Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). Irreparable harm is “[p]erhaps the single most important prerequisite for the issuance of” injunctive relief of this sort. Wright & Miller, supra § 2948.1. Lacking a showing of “certainly impending” future injury, the Court cannot grant the temporary restraining order. See Aransas Project v. Shaw, 775 F.3d 641, 664 (5th Cir. 2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
3. Conclusion
The Supreme Court has already affirmed that petitioners are entitled to judicial review, including notice and a hearing, before removal. See J.G.G., 2025 WL 1024097, at *2. The government agreed with this statement of law before the Supreme Court, see id., and before this Court, see Dkt. No. 19 at 13. The petitioners have not made a sufficient showing at this stage to convince the Court that the government will violate its representations to that effect or the instructions of the Supreme Court. The petitioners have therefore failed to meet their burden to show a substantial threat of imminent, irreparable injury. The Court denies the motion for a temporary restraining order (Dkt. No. 2). Because the Court denies the emergency motion, it need not decide at this point whether to certify a class or appoint class counsel. The Court will issue a briefing order regarding the motion for class certification and appointment of class counsel (Dkt. No. 3) in due course.
White House Officials Say They Sent Harvard April 11 Demands in Error, New York Times Reports. According to a report by the New York Times, members of the Trump administration's antisemitism task force sent Harvard a detailed list of demands on April 11 by mistake. After receiving the letter, Harvard publically declared it would resist the funding threats. by Julian J. Giordano, Dhruv T. Patel and Grace E. Yoon The Harvard Crimson Updated April 19, 2025, at 9:05 a.m. https://www.thecrimson.com/article/2025 ... ter-error/
The White House had not intended to send its revised — and more aggressive — set of demands to Harvard on April 11, according to a report by the New York Times published Friday evening.
Trump administration officials claimed that the demands — which were seen as excessive and illegal to Harvard’s administrators — should not have been sent and were “unauthorized,” according to the Times, which cited two unnamed sources.
The April 11 letter was signed by Josh Gruenbaum, the commissioner of the General Services Administration, Sean R. Kevney, the acting general counsel of the United States Department of Health and Human Services, and Thomas E. Wheeler, the acting general counsel of the U.S. Department of Education.
A Harvard spokesperson slammed the government’s response as “breathtakingly intrusive” in a statement to The Crimson.
“Even if the letter was a mistake, the actions the government took this week have real-life consequences,” the spokesperson wrote, adding that the letter was signed by a senior official and bore all the hallmarks of an official government document.
A White House spokesperson did not immediately respond to a request for comment.
According to the Times, Harvard’s lawyers had been seeking specifics on the Trump administration’s initial set of demands, which were sent on April 3, believing it was possible to avoid the public standoff that later ensued.
The first letter — two pages in length — demanded that Harvard ban masks at protests, eliminate diversity, equity, and inclusion programming, and agree to comply with the Department of Homeland Security, but carried little detail of what the White House wanted the University to change.
The Friday letter was supposed to clarify the initial list, but instead presented a much more aggressive array of demands that included derecognizing pro-Palestine groups, submitting to three years of federal audits, and agreeing to report international students who broke University conduct policies to federal agencies.
Shortly after Harvard President Alan M. Garber ’76 announced the University would defy the White House’s demands on Monday, Gruenbaum called one of Harvard’s lawyers to say that he, and Wheeler, had not authorized the letter’s release.
But in the same call, while Gruenbaum indicated that the letter had been ready to send, it was not intended to be delivered last Friday when conversations between the Trump administration and Harvard were still ongoing, according to the Times.
A senior White House official defended the demands the administration issued last Friday and its aggressive response in the letter’s direct aftermath in a statement to the Times, saying that Harvard had failed to “pick up the phone” and engage with members of the federal antisemitism task force after Gruenbaum’s call.
“Instead, Harvard went on a victimhood campaign,” the official said.
On Monday night, senior administrators and the Harvard Corporation, the University’s highest governing body, were briefed on the alleged mistake in sending the letter — many of whom left convinced that the Trump administration’s aggressive revised set of demands were indeed sent erroneously, according to the Times.
But by then, the standoff between the Trump administration and Harvard had progressed too far — Garber had taken a stand and the White House had cut $2.2 billion in federal grants and contracts.
YOU ARE NOT ALLOWED TO FIGHT BACK, YOU UNLAWFUL ENEMY COMBATANT!
Clarification: April 19, 2025
A previous version of this article implied that Harvard officials had been negotiating with the White House before April 11. In fact, according to the New York Times, they were just in contact.
—Staff writer Dhruv T. Patel can be reached at [email protected]. Follow him on X @dhruvtkpatel.
—Staff writer Grace E. Yoon can be reached at [email protected]. Follow her on X @graceunkyoon.
