A core element in the Trump administration’s attack on immigrants is its intent to deport persons without adequate judicial review. On March 15th, it invoked the rarely used Alien Enemies Act to deport several 100 persons to El Salvadorean prisons. On Monday, the last day of March, the government responded to a demand by the lawyers that their client be returned from El Salvador. Also, the government on Friday, March 28, reached out to the Supreme Court to support its use of the Alien Enemies Act.

Before getting into these two cases, it’s worth noting what the Trump administration is trying to do. It is using deportations as an opening to taking legal action against any kind of person in a way that evades judicial review. The arbitrariness of it is the feature it prizes. It is also trying impose on American politics and law the idea that we are in a state of social chaos amounting to war.

The case of Kilmar Abrego Garcia

An El Salvadoran, Abrego Garcia was living in New Jersey with his family and had legal permission to be in the United States. He has an asylum application in process.  The government used a accusation made in 2019 without merit that he was a member of the M-13 gang. He was one of the several hundred persons flown by ICE to El Salvador on March 15. The next day, his wife identified him by his tattoos in a photo taken of prisoners.  A suit in his behalf was brought before Maryland federal district court, Judge Paula Xinis. Abrego Garcia’s lawyers argue that the government is responsible for bringing him back.

On March 31, in a submission to Judge Xinis, the government admitted that although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error. It told the judge that the court lack jurisdiction because the person is outside the country. It said that Abrego Garcia’s claims must be brought via habeas corpus, which requires U.S. custody. It also argue that the requested relief, for instance, from the threat of torture—having the U.S. government pressure El Salvador to return Garcia—is speculative and not redressable by the court.

(Here is the Atlantic article. Here is the government’s submission to the court.

The government appeals to the Supreme court over the Alien Enemies Act: ”Irregular warfare.”

On Friday, March 28, the government appealed to the Supreme Court to overturn the decision by judge James Boasberg’s United States District Court for the District of Columbia to stay the government’s application of the alien enemies act. Here is a summary of its argument:

The government argues that the district court’s injunction interferes with core presidential powers. It contends that judicial review under the AEA is limited to habeas corpus petitions filed in the detainee’s place of confinement, which the plaintiffs bypassed by pursuing claims under the Administrative Procedure Act  in Washington, D.C. The government insists the President lawfully invoked the AEA after finding that Tren de Aragua, acting with Venezuela’s Maduro regime, had infiltrated the U.S. to wage “irregular warfare.”

The government contends that Tren de Aragua (TdA) has engaged in a broad campaign of criminal violence—including murder, kidnapping, extortion, drug trafficking, and arms violations—both within and beyond U.S. borders. It  describes Tren de Aragua as having “infiltrated” U.S. communities through illegal migration and operates in coordination with Maduro’s Cartel de los Soles, using narcotics to “flood” the U.S. as a weapon. The administration asserts that this convergence of transnational crime and political direction by a foreign government constitutes a modern form of warfare—covert, decentralized, and intended to sow chaos rather than achieve conventional military aims.

Go here for the submission.