WASHINGTON (CN) — A federal judge declined to issue an emergency order Friday evening that would block imminent decorations under the Alien Enemies Act, finding that he lacked such authority and that any order would be struck down by the Supreme Court.
The Justice Department told Chief U.S. District Judge James Boasberg that the Department of Homeland Security did not plan on summarily deporting scores of Venezuelan migrants to El Salvador on Friday or over the weekend, amid reports migrants would be removed imminently.
Justice Department attorney Drew Ensign said that he had been told there would be no removal flights to El Salvador later on Friday, nor were there any plans for such flights on Saturday or Sunday.
He added, however, that the DHS reserved its right to conduct deportations — likely under the standard Immigration and Nationality Act — but did not provide further details.
Boasberg, a Barack Obama appointee, scheduled the hearing after the American Civil Liberties Union filed an emergency motion earlier on Friday, warning that migrants and held in Northern Texas had received immediate removal notices and were being loaded onto busses.
“Without the court’s immediate intervention, dozens or hundreds of class members may be removed to [the Terrorism Conferment Center] CECOT within hours — all without any real opportunity to seek judicial review, in defiance of due process and the Supreme Court’s order,” the ACLU wrote.
The ACLU included images of the notices several migrants had received on Thursday, and indicated they would be removed within 24 hours.
“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,” the ACLU wrote.
Boasberg called the notices “concerning” and “troubling.”
Boasberg declined the ACLU’s motion for an immediate ruling that would require the government to provide 30 days notice before removing anyone under the Alien Enemies Act, finding that the order would be identical to a prior order struck down by the Supreme Court.
He said that such an order, preventing deportations on a non-habeas claim, had already been foreclosed by the high court’s ruling last month.
However, he expressed sympathy with ACLU attorney Lee Gelernt and his concerns that the government’s statement was not quite reassuring, considering the fact two removal flights left the United States in the middle of a previous hearing last month.
On Wednesday, Boasberg found probable cause for criminal contempt regarding the Trump administration’s “willful disregard” for his orders, and ordered the government to either purge the contempt by asserting custody over migrants shipped to CECOT or face contempt hearings.
Immediately following Friday’s hearing, the D.C. Circuit stayed Boasberg’s probable cause finding to allow for further appeals in the case.
U.S. Circuit Judge Cornelia Pillard noted she would not have granted the stay because Boasberg’s finding is not an appealable order.
The ACLU said that it brought a similar motion in the Northern District of Texas, where the migrants were being held, in their habeas suits there, but the court had refused to act on the temporary restraining order or schedule a hearing.
Ensign argued that if Boasberg were to grant the emergency relief, he would effectively make himself an appellate court overseeing the Texas judge’s proceedings.
The ACLU filed a simultaneous challenge to the Supreme Court on Friday, seeking a similar order preventing their decorations.
Earlier this month, the Supreme Court ruled that migrants facing removal under the Alien Enemies Act must have due process, including adequate time to challenge their deportation. The Venezuelan migrants said the Trump administration had violated that order.
Under the Alien Enemies Act of 1798, the president can detain and deport natives and citizens of an enemy nation. It has been used only three times in the nation’s history: during the War of 1812, World War I and World War II. President Franklin Roosevelt infamously ordered the internment of Japanese Americans under the statute.
In its ruling, the Supreme Court issued a divided ruling allowing President Donald Trump to continue deportations under the rarely used wartime power only if migrants were provided due process rights.
In a per curiam opinion, the justices said detainees are entitled to notice and an opportunity to be heard. Alien Enemies Act detainees specifically, the court wrote, must receive notice that they are subject to removal under the wartime power.