(Reuters) -A U.S. appeals court judge said on Monday that Nazis were given more rights to contest their removal from the United States during World War Two than Venezuelan migrants deported by the Trump administration.
In a contentious hearing, U.S. Circuit Judge Patricia Millett questioned government lawyer Drew Ensign on whether Venezuelans targeted for removal under a little-used 18th-century law had time to contest the Trump administration’s assertion that they were members of the Tren de Aragua gang before they were put on planes and deported to El Salvador.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” Millett said, to which Ensign responded, “We certainly dispute the Nazi analogy.”
Prior to the Trump administration’s invocation of the 1798 Alien Enemies Act, the law had been used three times in U.S. history, most recently to intern and remove Japanese, German and Italian immigrants during World War Two.
The Trump administration was asking the appeals court to halt Washington-based U.S. District Judge James Boasberg’s two-week ban, imposed on March 15, on the use of the law to justify deportation of alleged Tren de Aragua members without final removal orders from immigration judges.
Family members of many of the deported Venezuelan migrants deny the alleged gang ties. Lawyers for one of the deportees, a Venezuelan professional soccer player and youth coach, said U.S. officials had wrongly labeled him a gang member based on a tattoo of a crown meant to reference his favorite team, Real Madrid.
Millett, an appointee of Democratic President Barack Obama, is one of three judges on a panel of the U.S. Court of Appeals for the D.C. Circuit hearing the government’s challenge to Boasberg’s order. U.S. Circuit Judge Justin Walker, who was appointed by Republican Donald Trump during his first term as president, appeared more supportive of the government’s arguments.
The third judge on the panel, Karen Henderson, was appointed by Republican President George H.W. Bush. The court did not say when it would rule.
The case has emerged as a major test of Trump’s sweeping assertion of executive power. With Republicans holding a majority in both the House of Representatives and Senate and largely falling in line behind the president’s agenda, federal judges often have emerged as the only constraint on Trump’s wave of executive actions.
In a Monday court filing, government lawyers told Boasberg that they would not be providing any more information about the deportation flights, invoking the state secrets privilege. That legal doctrine allows the government to withhold information that might endanger national security during court proceedings.
After Boasberg temporarily halted the deportations, Trump called for the judge’s impeachment in a process that could lead to his removal. In response, U.S. Supreme Court Chief Justice John Roberts issued a rare statement rebuking Trump and stating that appeals, not impeachment, are the proper response to disagreements with judicial decisions.
‘HUSTLED’ ONTO PLANES
Trump has argued that it is the judiciary, not his administration, that is overreaching.
At Monday’s hearing, Ensign told the appeals judges that Boasberg’s order must be paused because the judge had no right to second-guess the president’s decisions on foreign affairs matters.
Walker asked Lee Gelernt, a lawyer with the American Civil Liberties Union representing some Venezuelan migrants, for examples of past cases in which courts have restricted presidents’ national security actions and been upheld on appeal.
Gelernt said the government could not take the position that giving people due process would interfere with national security.
In a 37-page ruling earlier on Monday, Boasberg rejected a request by the Trump administration to set aside the two-week ban. The judge said people must be able to challenge the government’s stance that they are indeed members of Tren de Aragua before being deported.
Boasberg is also weighing whether the Trump administration violated his order by failing to return deportation flights after his order was issued.
The judge wrote that the administration appeared to have “hustled people onto those planes” to avoid a potential court order blocking the deportations.
The Trump administration on March 15 deported more than 200 people to El Salvador, where they are being detained in the country’s massive anti-terrorism prison under a deal in which Washington is paying President Nayib Bukele’s government $6 million.
Boasberg’s ruling on Monday applied to five plaintiffs represented by the ACLU involved in a prior more narrow ruling, as well as other Venezuelans in the U.S. who may be targeted for removal under the Alien Enemies Act. The judge did not address the migrants currently held in El Salvador.
In a court filing on Monday, the ACLU urged Boasberg to require the migrants be returned to the U.S. if he establishes they were deported in violation of his order.
The ACLU said eight Venezuelan women and a Nicaraguan man were among those flown to El Salvador, but rejected by the government and returned to the U.S.
In a sworn declaration, one of the Venezuelan women said she heard a U.S. official while in flight discussing an order “saying we can’t take off.”
(Reporting by Luc Cohen in New York and Ted Hesson in Washington; Additional reporting by Jack Queen in New York and Nelson Renteria in San Salvador; Editing by Franklin Paul, Noeleen Walder and Bill Berkrot)
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