The Justice Department laid out its case on Thursday for why President Donald Trump believes the Venezuelan gang known as Tren de Aragua has made a “predatory incursion” into the United States, which the DOJ says allowed Trump to invoke the Alien Enemies Act.
The full panel of judges on the U.S. Court of Appeals for the 5th Circuit heard arguments in a challenge to Trump’s invocation of the Alien Enemies Act, grilling DOJ lawyer Drew Ensign on the president’s basis for doing so, and at times appearing skeptical of the reasoning.
The judges questioned Ensign on what the difference between a full invasion and a “predatory incursion” is. The Justice Department lawyer disagreed with a previous appeals court panel’s ruling that rejected the finding of an incursion, saying a “country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States.”
“I think we can start with what everyone agrees with: predatory incursion is less than that invasion,” Ensign said.
“I think one aspect we take issue with [in] the panel opinion is, they thought that a predatory incursion was simply a failed attempted invasion,” he said.
Ensign detailed the criminal actions of Tren de Aragua, including murder, kidnapping, and rape, along with occupying apartment buildings, arguing these actions make the incursion by foreign nationals predatory. The DOJ lawyer also noted the close ties between the gang and the Maduro regime in Venezuela, which he said satisfies the Alien Enemies Act requirements.
“TdA has engaged in alleged crimes, but realistically, the evidence here is it engaged in quite a number of activities that regularly satisfy the predatory requirement,” Ensign said. “I think the occupation of entire apartment buildings is not the sort of ordinary crime.”
Trump issued an order in March 2025 invoking the Alien Enemies Act to speed up deportations of suspected members of the Venezuelan gang. He declared a “predatory incursion” by the group, as required in order for the law to be invoked. Trump has faced various legal challenges to that order, including the challenge by a group of Venezuelan nationals backed by the ACLU, which was heard by the full bench of the 5th Circuit.
During Thursday’s hearing, the appeals court also questioned Ensign on the DOJ’s assertion that courts should give significant deference to the president’s findings that the conditions required to invoke the enemies act have been met.
“We are still in the sort of context where extreme deference would apply,” Ensign said.
The full bench on the 5th Circuit appeared generally skeptical of the DOJ’s arguments for using the Alien Enemies Act, after lower courts have overwhelmingly rejected the president’s use of the 18th-century law.
JUDGE ‘ABUSED ITS DISCRETION’ BY ORDERING TRUMP TO FUND ENVIRONMENTAL GROUPS, APPEALS COURT SAYS
The ruling of the full Fifth Circuit’s ruling is expected to be appealed to the Supreme Court, which could add Trump’s use of the Alien Enemies Act to the growing list of cases involving the president on its docket.
In the coming months, the Supreme Court will hear arguments over another of the Trump administration’s controversial actions: an executive order reshaping the definition of birthright citizenship under the 14th Amendment. The high court is expected to hear arguments in that case in March or April, with a ruling by the end of June.