Judge in Johnstown becomes 1st in U.S. to uphold use of Alien Enemies Act to deport Venezuelans

A federal judge in Johnstown on Tuesday ruled the government may remove Venezuelan citizens thought to be members of a violent gang under the Alien Enemies Act — but only if they are given 21 days notice and “an opportunity to be heard.”

The 43-page opinion, written by U.S. District Judge Stephanie Haines, is the first in the country to find that the gang, Tren de Aragua, has launched a “predatory incursion” in the U.S. as defined by the act.

Haines’ ruling grew out of a case in which a Venezuelan man identified by the initials A.S.R. is trying to prevent the government from deporting him because of alleged gang ties.

Attorneys for A.S.R. said they will appeal and expect the issue will ultimately end up before the U.S. Supreme Court.

“We intend to appeal the decision because the Alien Enemies Act is a wartime authority that was not intended to cover migration or ordinary criminal activity,” Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, told TribLive.

The ruling was favorable, however, for A.S.R. in requiring the government to give him 21 days notice before deporting him.

“Right now, as far as we know, A.S.R. has not been designated an alien enemy, so the clock’s not running yet,” Gelernt said.

Defining ‘predatory incursion’

A.S.R. was arrested Feb. 26 when his neighbor reported he was a gang member.

He vehemently denies being a member of Tren de Aragua, and said in court filings he came to the United States in 2023 with his wife, child and two stepchildren after being extorted by groups associated with the regime of Venezuelan President Nicolás Maduro.

Initially held in Moshannon Valley Processing Center in Clearfield County — within the jurisdiction of the Western District of Pennsylvania, which include Johnstown — A.S.R. was sent on April 15 to Bluebonnet Detention Center in Texas.

That same day, attorneys for the ACLU sued the government in U.S. District Court, alleging A.S.R. was at risk of removal under the Alien Enemies Act, which was invoked by presidential proclamation in March.

President Donald Trump said members of Tren de Aragua, a violent gang in Venezuela that in February was designated a Foreign Terrorist Organization by the United States, had infiltrated the U.S. and were conducting “irregular warfare.”

Under Trump’s proclamation, the government says it may apprehend and remove all Venezuelan citizens 14 years of age or older who are members of the gang. Since then, dozens of Venezuelans have been subject to potential removal across the country.

In A.S.R.’s case, his attorneys sought a preliminary injunction asking that the government be prohibited from removing him and that the court declare the president’s proclamation does not comply with the Alien Enemies Act.

At a May 5 hearing before Haines, attorneys for A.S.R. argued that the Alien Enemies Act had previously been used only in wartime and that it may be invoked under two circumstances: during a declaration of war, or in the event of a military invasion or predatory incursion.

The lawyers argued the situation with Tren de Aragua does not fit either circumstance.

Haines, however, disagreed. The judge, a Trump appointee, said the proclamation meets the definition of a “predatory incursion.”

Several pages of Haines’ opinion dwelled on defining those two words, citing dictionaries from 1772 and 1828.

“The court cannot help but ask: Is a Foreign Terrorist Organization like TdA not the modern equivalent of a pirate or robber?” Haines asked in a footnote.

The judge repeatedly returned to the fact that Tren de Aragua has been declared a foreign terrorist organization.

“That fact has been weighing heavily on the court in considering the significant questions before it,” Haines wrote. “Is such an (Foreign Terrorist Organization) not the modern equivalent of the ‘enemies, pirates and robbers’ committing ‘incursions’ around the enactment of the (Alien Enemies Act?)”

Taking Trump’s word

Although Haines acknowledged the Alien Enemies Act has been invoked only during the War of 1812, World War I and World War II, she said that doesn’t mean it can’t be used otherwise.

The law permits a president to act “[whenever] any invasion or predatory incursion is perpetrated, attempted or threatened against the United States by any foreign nation or government,” she wrote. “The fact that no president has previously needed to (or seen fit to) employ Congress’ grant of power in the context of an ‘invasion’ or a ‘predatory incursion’ is not a basis upon which this court may undo that Congressional grant of power.”

Haines found that the term “predatory incursion” may be applied to foreign terrorist organizations today.

She defined the term as “a hostile entry into the United States by a cohesive group of individuals, such as a military detachment or a designated Foreign Terrorist Organization, who are united by a common goal of causing significant disruption to the public safety — whether it be the safety of persons, property or pecuniary interests — of those within the United States.”

Haines wrote that she “will accept as true President Trump’s conclusion, via the proclamation, that TdA is acting ‘at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.’”

The court, she continued, has no authority to assess the truthfulness of the administration’s statements in the proclamation.

Haines, however, found disingenuous a different facet of the government’s position.

At last week’s hearing, government lawyers argued that A.S.R. was going to be deported under immigration law, not the Alien Enemies Act.

But Haines noted that A.S.R. was scheduled for a hearing in immigration court in New Jersey on April 15.

That day, the government moved A.S.R. from Moshannon Valley to Texas — at the same time it was moving several others in preparation of removing them under the president’s proclamation.

“The court cannot square that circle,” Haines wrote.

Instead, she found that to be “conclusive evidence” that A.S.R. was in custody under the Alien Enemies Act.

A chance to be heard

Although she ruled against A.S.R. on several points of his injunction request, Haines agree with his attorneys on one thing: the 12- or 24-hour notice the government has said it would provide detainees subject to deportation under the Alien Enemies Act is insufficient.

Her order requires the government to provide 21 days notice of the possibility of removal and an “opportunity to be heard.”

The notice must be provided in English and Spanish, and an interpreter must be made available for any necessary hearings.

The order does not bar the removal of A.S.R. under immigration proceedings.

Although the government asserted at the hearing that A.S.R. is not being designated for removal under the Alien Enemies Act, Haines acknowledged that could change at the government’s discretion.

Haines wrote that it is well-established that aliens are entitled to due process in deportation proceedings.

The Supreme Court reiterated that position in an April decision, ruling that it applies even to those subject to removal through the Alien Enemies Act.

In finding that a 21-day notice is necessary, Haines wrote that individuals in the custody of Immigration and Customs Enforcement are frequently moved, that their attorneys often have a difficult time speaking with them, and filing for relief cannot be done within mere hours.

“Second, the court is concerned that, if it does not provide sufficient notice and opportunity to be heard, individuals who are not in fact subject to the (Alien Enemies Act) and the proclamation may be errantly removed from this country.”

In her opinion’s conclusion, Haines wrote her obligation is “to apply the law as written.”

“Having done its job, the court now leave it to the political branches of the government, and ultimately to the people who elect those individuals, to decide whether the laws and those executing them continue to reflect their will.”