A federal judge on Monday appeared inclined to continue to prevent the Trump administration from using the 18th-century Alien Enemies Act to deport immigrants being held in Colorado.
U.S. District Judge Charlotte Sweeney questioned government lawyers at a morning hearing in Denver about why she shouldn’t continue a temporary restraining order in the case of two Venezuelan men being held at an immigration detention center in Aurora.
Sweeney repeatedly cited a U.S. Supreme Court brief from early Saturday morning in which the high court temporarily paused the deportation of immigrants in northern Texas under the Alien Enemies Act.
“How could I not continue the temporary restraining order?” Sweeney asked the government’s counsel. The judge said she would issue a ruling within 24 hours.
Sweeney last week approved a temporary restraining order after the American Civil Liberties Union sued President Donald Trump and members of his administration on behalf of two Venezuelan men, referred to only by their initials, “and others similarly situated” who have been accused of being part of the Tren de Aragua gang.
Trump invoked the 1798 Alien Enemies Act in March, proclaiming Venezuelans who are members of TdA and not lawful residents of the U.S. “are liable to be apprehended, restrained, secured and removed as Alien Enemies.” The administration has used the act to send immigrants to a notorious mega-prison in El Salvador.
Tim Macdonald, the ACLU of Colorado’s legal director, said Monday morning that at least 11 Colorado residents held at the U.S. Immigration and Customs Enforcement contract detention center in Aurora have been sent to the Centro de Confinamiento del Terrorismo prison in El Salvador.
People held in CECOT, as it’s known, are denied communication with their relatives and lawyers, Human Rights Watch said last month. The Salvadoran government has described people held in CECOT as “terrorists,” and has said that they “will never leave.”
The Alien Enemies Act has been used only three other times in American history, most recently to intern Japanese-American citizens during World War II.
The U.S. Supreme Court ruled this month that anyone being deported under the declaration deserved a hearing in federal court first.
That led federal judges in New York and Texas to place temporary holds on deportations in those areas until Trump’s Republican administration presented a procedure for allowing such appeals.
During Monday’s hearing in Denver, the government’s lawyer, Michael Velchik, said the court lacked the authority to make a ruling in this case since immigration authorities were not trying to remove the two Venezuelan plaintiffs under the Alien Enemies Act.
“That could change at any time,” Sweeney said.
She asked the government lawyers if they could guarantee that the two individuals would never be removed under the act.
“I’m not sure it’s appropriate for the government to permanently immunize these petitioners,” Velchik said.
“The consequences here would be extremely grave if I denied the (temporary restraining order) and two days later, upon finding ‘new evidence,’ these two individuals are designated as TdA and subject to removal,” Sweeney said. “Wouldn’t the prudent thing be to continue the (temporary restraining order) and await guidance from the Supreme Court?”
Macdonald repeatedly referred to the government’s strategy as a “shell game.” Civil rights organizations are playing a game of whack-a-mole, he said. As soon as one court bars authorities from deporting immigrants under the Alien Enemies Act, he said, the government immediately ships people to a jurisdiction where there’s no order in place.
A permanent order in the Colorado case “is the only way to prevent irreparable, life-threatening harm,” Macdonald said.
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