The Trump administration is invoking rarely used authorities to remove some noncitizens from the United States, laying the groundwork for the Supreme Court to weigh in on whether the controversial actions are legal.
President Donald Trump has framed his actions as efforts to root out noncitizens who support terrorists and banish members of notoriously violent gangs, but outside groups and lawyers have accused the president of acting illegally and sued.
Trump prompted the largely novel legal questions this month, first in a case involving Mahmoud Khalil, a legal permanent resident involved in pro-Palestinian protests at colleges, and then again when he rushed to fly alleged Venezuelan gang members out of the country. A third case in Boston further highlighted the administration’s efforts to test limits where possible to kick unwelcome noncitizens out of the country.
“It’s creative, to put it mildly, maybe just blatantly unlawful,” Neama Rahmani, a former California-based federal prosecutor, told the Washington Examiner of Trump’s recent immigration enforcement moves.
DOJ calls judge’s order a ‘massive, unauthorized imposition on the Executive’s authority’
In the most dramatic escalation yet of Trump’s expansive use of his presidential authority, the president invoked the Alien Enemies Act last week to deport swathes of alleged migrant gang members detained in the United States quickly. The American Civil Liberties Union filed a lawsuit.
Judge James Boasberg, an Obama appointee and chief judge in Washington’s district court, responded by issuing a two-week restraining order, temporarily barring the Trump administration from deporting anyone under the Alien Enemies Act and immediately halting all such deportation activity that had already commenced. That time frame would allow Boasberg to review legal briefs from both parties on the matter.
The ACLU attorneys are representing five Venezuelan defendants and contest Trump’s assertion that they are members of Tren de Aragua, a transnational gang.
They wrote in their complaint that Trump improperly invoked the Alien Enemies Act, “a wartime measure that has been used only three times in our Nation’s history: the War of 1812, World War 1 and World War II.”
Further complicating the case is a flight that took off carrying alleged migrant gang members under the Alien Enemies Act, possibly after Boasberg issued a verbal order from the bench Friday pausing that activity. The ACLU lawyers now say Trump not only attempted to use an 18th-century wartime law during peacetime but that he also defied a court order.
Boasberg gave Department of Justice attorneys until noon on Tuesday to provide answers to him about what planes carrying migrants over the weekend took off and when. In the meantime, the DOJ has appealed Boasberg’s restraining order. In an extraordinarily unusual move, DOJ attorneys also asked the appellate court to take Boasberg off the case.
The DOJ attorneys argued Boasberg put a “massive, unauthorized imposition on the Executive’s authority to remove people” whom the president deems gang members and that Boasberg was improperly conducting a “hasty public inquiry into these sensitive national security matters.” Rahmani predicted the case is headed for the Supreme Court.
“No question they’re going to push the limits of our country’s immigration laws until a judge, probably the justices of the United States Supreme Court, stops them,” Rahmani said.
Trump administration takes aim at college protester and kidney doctor over their alleged support for terrorism
The Trump administration made a recent show of power in two other immigration cases, which are parallel in that authorities expeditiously moved to boot the defendants out of the country over their alleged support for Hamas and Hezbollah, two designated terrorist organizations.
The more prominent case, involving Mahmoud Khalil, arose after Department of Homeland Security officials arrested him in Manhattan on March 8, claiming the State Department revoked his green card and that he would be entered into removal proceedings.
The move prompted immediate questions about the basis for Khalil’s arrest. Trump, Secretary of State Marco Rubio, and White House officials have all made sweeping extrajudicial allegations that Khalil was antisemitic and promoted Hamas during the college protests last year, which they say is at odds with the United States’s foreign policy interests.
Under the Immigration and Nationality Act, a noncitizen can be removed if he or she “endorses or espouses terrorist activity,” an uncommon use of the law.
Steve Vladeck, a Georgetown University law professor, wrote that he suspected Trump’s emphasis on Khalil’s viewpoints, rather than any felonious activity he might have partaken in, is a sign that the president might be planning to employ the provision more often.
Trump’s social media “suggests that the government intends to use these rarely invoked removal authorities in enough cases” to silence noncitizens who want to speak about “sensitive political issues,” Vladeck said.
“Conflating ‘pro-terrorist,’ ‘anti-Semitic,’ and ‘anti-American’ activity is an incredibly dangerous step to take,” he said.
Khalil’s attorneys are fighting in court in New York to keep the case there, while the Trump administration is hoping to move the case to Louisiana, the jurisdiction of the country’s most conservative circuit court.
A lower-profile but similar case emerged in Boston over the weekend, when U.S. Customs and Border Protection blocked a doctor who specializes in kidney transplants from entering the country after discovering she had just attended the funeral of a leader of Hezbollah, a designated terrorist organization.
Representatives for Dr. Rasha Alawieh said in court documents that she had an active H-1B visa and worked for Brown Medicine as an assistant professor. They said that upon returning to the U.S. from Beirut last week, she was held at Boston Logan International Airport for 36 hours before CBP flew her out of the country.
LEBANESE DOCTOR BARRED FROM US ENTRY OVER ALLEGED HEZBOLLAH SYMPATHY
The case is moving at lightning speed like the other cases, after the Trump administration quickly put Alawieh on a flight after a judge ordered CBP not to. DOJ attorneys told the judge Monday morning that CBP was not aware of the order when it denied Alawieh entry into the U.S. The attorneys said her phone content raised questions about her allegiances.
“CBP questioned Dr. Alawieh and determined that her true intentions in the United States could not be determined,” a DOJ prosecutor wrote. Alawieh is fighting in court to get her job back.