Alito Calls Supreme Court Block of Venezuelan Gang Deportations ‘Legally Questionable’

The high court shunned normal procedure in blocking the removals, Justice Samuel Alito said in a dissent joined by Justice Clarence Thomas.

Associate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington on April 23, 2021. Erin Schaff/Pool via Reuters

Supreme Court Justice Samuel Alito filed a strongly worded dissent from the court’s order issued early April 19 that temporarily blocked the Trump administration from deporting alleged members of the Venezuelan criminal gang Tren de Aragua.

The dissenting opinion, which was joined by Justice Clarence Thomas, was posted on the court’s website early on April 20.

“In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order,” Alito wrote.

“I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.”

“Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J.G.G., and this Court should follow established procedures,” Alito wrote.

The justices acted even though “it is not clear the Court had jurisdiction,” or authority to hear the case, he wrote.

“The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation,” Alito wrote.

In Trump v. J.G.G., the Supreme Court on April 7 granted the president’s request to pause a federal district judge’s orders preventing his administration from using the Alien Enemies Act to deport suspected members of Tren de Aragua but determined that detainees must be given an opportunity to challenge their removal.

The unsigned one-page administrative stay issued early April 19 to which Alito referred directed the federal government “not to remove any member of the putative class of detainees from the United States until further order of this Court.”

An administrative stay gives the justices more time to consider the emergency request to block the deportations. That order did not provide an explanation of why the court acted.

The order was issued after the American Civil Liberties Union (ACLU) filed an emergency request on behalf of two Venezuelan nationals late on April 18, asking the Supreme Court to immediately block their deportation.

The emergency application in A.A.R.P. and W.M.M. v. Trump challenges President Donald Trump’s use of the Alien Enemies Act to deport illegal immigrants who are alleged or confirmed criminal gang members. A.A.R.P. and W.M.M. are the initials of two of the detained men.

The ACLU also sought a temporary restraining order from the U.S. District Court in the District of Columbia, as well as a stay of removal order from the Fifth Circuit, according to the application.

On March 14, Trump signed Proclamation 10903, in which he officially declared that Tren de Aragua, a designated foreign terrorist organization, “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”

The group is using mass illegal immigration to the United States to harm U.S. citizens, undermine public safety, and support the goal of the Venezuelan socialist regime with which it is associated to destabilize “democratic nations in the Americas, including the United States,” the proclamation said.

The president invoked the Alien Enemies Act to authorize the “immediate apprehension, detention, and removal” of members of the group who are Venezuelan citizens 14 years of age or older and who are not U.S. citizens or lawful permanent residents of the United States.

The application said the ACLU’s clients are challenging the Trump administration’s use of the federal statute to deport them. The clients “are in imminent and ongoing jeopardy of being removed from the United States without notice or an opportunity to be heard, in direct contravention of this Court’s order in Trump v. J.G.G.”

“Many individuals have already been loaded on to buses, presumably headed to the airport,” and are at risk of being sent to a prison in El Salvador, according to the April 18 application.

On March 15, the Trump administration used the Alien Enemies Act to deport at least 137 Venezuelans to El Salvador, where they are now incarcerated “possibly for the rest of their lives” at the Salvadoran Terrorism Confinement Center, which is “one of the most notorious prisons in the world,” the application said.

The application alleged that many of those deported since March 15 were not members of Tren de Aragua.

“Such false accusations are particularly devastating given the present Applicants’ strong claims for relief under our immigration laws,” the application said.

The application came one day after U.S. District Judge James Wesley Hendrix of the Northern District of Texas denied the ACLU clients’ request for a temporary restraining order halting removal efforts.

Hendrix rejected the ACLU’s claim that its clients were “at imminent risk of summary removal” because the government denied the allegation.

Late on April 19, Solicitor General D. John Sauer urged the Supreme Court to deny the application.

“At a minimum, if the Court keeps its administrative stay in place, the government respectfully requests that the Court clarify that it is administratively staying removals only under the [Alien Enemies Act], and that its order does not preclude removal pursuant to any other immigration authorities,” Sauer wrote.