“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

— Boumediene v. Bush, 553 U.S. 723, 826 (2008) (Scalia, J., dissenting)

“If due process is of no moment, what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen?” — Abrego Garcia v Noem, April 17, 2025

In a 5/10/25 Politico article, Kyle Cheney wrote that federal judges from both parties are warning that President Trump’s mass deportation efforts—often bypassing due process—threaten constitutional protections for all Americans. Judges cite cases of immigrants deported illegally or without hearings, sometimes in defiance of court orders. Judges argue that undermining due process for noncitizens could endanger U.S. citizens as well. Despite legal pushback, Trump officials defend their actions as fulfilling a voter mandate. The courts insist that “process is not puffery,” and that constitutional protections apply to “persons”—citizens and noncitizens alike.

Why in Federal Court and not in Immigration Court?

If an ICE detainee claims their constitutional right to due process is being violated—e.g., no notice of hearing, unlawful detention, or expulsion without a fair hearing—only a federal court can decide that. Zadvydas v. Davis (2001), and Demore v. Kim (2003) confirmed that noncitizens may challenge the constitutionality of their detention via habeas corpus in federal courts.

Federal district courts have jurisdiction under 28 U.S.C. § 2241 to hear habeas corpus petitions from individuals who are “in custody in violation of the Constitution or laws or treaties of the United States.” This includes noncitizens detained by ICE who argue that their detention is unlawful. their removal would violate constitutional rights (e.g., due process), or their deportation violates statutory protections (e.g., eligibility for relief or improper designation of their status).

Immigration courts, which are administrative courts under the Department of Justice’s Executive Office for Immigration Review, only adjudicate immigration status, removability, and eligibility for relief. They do not have jurisdiction to issue writs of habeas corpus, rule on constitutional claims, and review the lawfulness of ICE’s detention practices.

ICE has begun to do more on-site visits to worksites in Washington DC and perhaps elsewhere. Without a warrant, ICE is not authorized to confront employees. Without a warrant, the only practical way to get into a work site is through a I-9 inspection. These inspections are performed by ICE’s Homeland Security Investigations Dept which appears to have no more than several hundred agents dedicated to 1-9 inspections.  Growing this staff will require a major effort, as will be upgrading the information systems supporting the staff. Unless radically upgraded, onsite visits without a warrant will yield relatively few deportations, although they may disrupt employment and business operations.

Why not worksite raids?

A worksite raid requires a warrant, which typically requires ICE to show to a judge evidence of unauthorized workers are employed at the site, employers are knowingly hiring undocumented workers, or there is identity fraud, document fraud, or I-9 violations. it is much easier to perform a I-9 inspection.

What is an I-9 inspection?

Employers are required to verify authorization for employment. Theu do so by completing a I-9 form (Employment Eligibility Verification form) for each employee and to show them to ICE when requested.  ICE can show up at a worksite without a warrant and arrest some one but it also perform  what is called and I-9 inspection.  This is an effect an audit of the payroll records, I-9 forms, and other personnel records of an employer.

The EPI describes how an inspection works: “ICE must give a “Notice of Inspection” at least three business days in advance, sometimes with a subpoena, which demands that the employer produce information about hiring, payroll and tax records, and other business information, in addition to the employer’s I-9s and copies of supporting identification documents. ICE agents and/or auditors then conduct an inspection of the I-9s and related documentation for compliance, including comparing employees’ documentation against DHS and Social Security Administration records. When ICE finds inconsistencies or indications of false documents, the employer receives at least 10 business days to make corrections. ICE may also issue a “Notice of Suspect Documents” if they believe a particular worker or workers are not authorized to work. The employer must then either contest the finding or terminate the worker. The employee must also be given an opportunity to update their documentation.”

The I-9 inspection is basically a document review and rarely involves actual interviews with employees. As a formal insurance professional, my guess is that most DHS staff assigned to perform these audits are neither trained or temperamentally fit to conduct one on one interviews.

Resource demand of I-9 inspections

They are labor intensive and comparable to Department of Labor audits and private sector auditing reviews.  During the first Trump administration under 7,000 a year were conducted. Possibly thousands of persons appear to have been detained this way, but the primary result of a finding of an unauthorization is that the employee disappears.  Without a significant increase in staffing resources and/or a significant improvement in the efficiency by way of information technology it is hard to imagine that I9 inspections will increase voluntary or involuntary deportations in a way that significantly helps the administration increase deportations from the 350,000 level.

How an unauthorized worker can escape detection in AN I-9 inspection

The primary way to avoid detection is to use a Social Security number and the appropriate name and date of birth as the form of identification as used in completing an I-9 form. The inspector will check Social Security records by way of e-Verify. E-Verify is not equipped to record multiple uses either simultaneously or sequentially of the same Social Security number. The inspector typically does not visually observe the employee.

On May 1 Judge Fernando Rodriguez of the U.S. District Court for the Southern District of Texas, in J.A.V. v. Trump, issued a permanent injunction preventing the Trump administration from using the Alien Enemies Act to deport Venezuelan migrants detained in the Southern District of Texas. The decision curtails the use of the AEA for deportations moving forward. It does not obligate the government to bring back those already deported to El Salvador.

Excerpts from the decision:

The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, followed by the identification of the alien enemies subject to detention or removal. Cf. United States v. Abbott, 110 F.4th 700, 736 (5th Cir. 2024) (“To be sure, a state of invasion under Article I, section 10 does not exist just because a State official has uttered certain magic words.”) (Ho, J., concurring). Allowing the President to unilaterally define the conditions when he may invoke the AEA, and then summarily declare that those conditions exist, would remove all limitations to the Executive Branch’s authority under the AEA, and would strip the courts of their traditional role of interpreting Congressional statutes to determine whether a government official has exceeded the statute’s scope. The law does not support such a position.

………

While a President’s declaration invoking the AEA need not disclose all of the information that the Executive Branch possesses to support its invocation of the statute, it must identify sufficient information to permit judicial review of whether the foreign nation or government’s conduct constitutes an actual, attempted, or threatened invasion or predatory incursion of the United States.

………

When ascertaining the plain, ordinary meaning of statutory language that harkens back to the nation’s founding era, courts rely on contemporaneous dictionary definitions and historical records that reveal the common usage of the terms at issue.

………

The historical records that the parties present, supplemented by the additional records that the Court reviewed, demonstrate that at the time of the AEA’s enactment, the plain, ordinary meaning of “invasion” was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory. In a similar vein, the common usage of “predatory incursion” and, to a lesser degree, “incursion,” referenced a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory.

……….

….the Proclamation’s language cannot be read as describing conduct that falls within the meaning of “invasion” for purposes of the AEA. As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation also falls short of describing a “predatory incursion” as that concept was understood at the time of the AEA’s enactment

………

As for the activities of the Venezuelan-directed TdA in the United States, and as described in the Proclamation, the Court concludes that they do not fall within the plain, ordinary meaning of “invasion” or “predatory incursion” for purposes of the AEA.

………

….. the Court need not reach whether TdA itself represents a “foreign nation or government.”

……..

For these reasons, the Court concludes that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and, as a result, is unlawful. Respondents do not possess the lawful authority under the AEA, and based on the Proclamation, to detain Venezuelan aliens, transfer them within the United States, or remove them from the country.

ChatGPT has another point of view, that invasion and especially predatory incursion, which can be a raiding party, is not primarily concerned with occupation of terrority.  Robriguez did not address state sponsorship. Had he done so, he might have said that invasion requires the active participation and leadership, visibly, in the invasion, and perhaps also in the predatory incursion. In some ChatGPT opens U some avenues of appeal.

Definitions of “Invasion” (circa 1798)

Dictionary definitions. In late-18th‐century English, “invasion” uniformly carried a military sense of hostile attack by a foreign power. For example, Johnson’s 1755 dictionary (reprinted 1785) defines invasion as a “hostile entrance upon the rights or possessions of another; hostile encroachment,” even illustrating invasions by armies

Similarly, Noah Webster’s 1828 dictionary (still reflecting 1790s usage) defines invasion as “a hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder”

Earlier dictionaries agree. John Kersey’s 1713 A New English Dictionary gives invasion as “an invading or setting upon, an encroachment or inroad upon a country”

In all cases these definitions emphasize warlike entry by armed force (often with “conquest,” “plunder,” or “encroachment” of territory) rather than mere immigration or crime. Inroad/irruption synonyms. Writers also used related terms. Johnson defines irruption (“Irruption”) as “the act of any thing forcing an entrance” and “inroad; burst of invaders into any place” , underscoring the physical entry aspect. Webster’s 1828 Road entry even notes that “road” could mean “an inroad; incursion of an enemy”

Likewise, Johnson and others used encroachment, inroad, or attack interchangeably with invasion

In political writings of the 1780s–90s (especially during the Revolutionary War and French Wars), “invasion” consistently referred to a foreign army attacking or occupying U.S. (or British/American colonial) territory, not to individual migration or smuggling.

Definitions of “Incursion” and “Predatory Incursion”

Incursion. The term incursion in the era meant a military raid or inroad by enemy forces. Johnson’s dictionary (1755) defines “incursion” simply as “Attack; mischievous occurrence” and (citing French usage) as an “invasion without conquest”

Webster’s 1828 dictionary gives a detailed definition: an incursion is “entering into a territory with hostile intention; an inroad,” specifically “applied to expeditions of small parties or detachments of an enemy’s army, entering a territory for attack, plunder or destruction”

Webster notes explicitly that incursion “differs from invasion, which is the hostile entrance of any army for conquest”

In other words, incursions were understood as smaller-scale raids by armed detachments, aimed at raiding, looting or sabotage, not necessarily seizing and holding land. “Predatory incursion.” The phrase predatory incursion appears in the 1798 Act (and later interpretations) but was not a fixed dictionary phrase. Its meaning can be inferred from contemporaneous usage of “predatory” and “incursion.” In the late 1700s, predatory (from predators) implied plundering or rapacious attack. Webster (1828) would later define predatory as “of, relating to, or practicing plunder, pillage, or rapine” (modern Merriam-Webster confirms this usage

Thus a “predatory incursion” would mean an incursion marked by predatory (plundering) intent – essentially a hostile raid conducted for theft or destruction. Indeed, Timothy Pickering (in 1798, as Secretary of War) contrasted “small, predatory incursions of the French” (which he said would cause property damage but could be repelled by militia) with a full‐scale “invasion by a powerful army”

Here “predatory incursions” clearly meant limited raids to seize goods or supplies, not conquest of territory.

Usage in Legal and Political Context

War-power and the Alien Enemies Act. The 1798 Alien Enemies Act (which is still on the books) uses precisely these terms in a war-time context. Its original text states that whenever war is declared “or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government,” then the President may detain or deport enemy aliens

In other words, the statute contemplates two scenarios: (1) an outright war (declared war) between governments, and (2) an invasion or “predatory incursion” by a hostile foreign power. In either case, the triggering event is a hostile act by a nation-state against U.S. territory. Period examples. Contemporary military and political writings illustrate these senses. Pickering’s 1798 letter (just months before the Act) complained of “predatory incursions of the French” that might destroy property, explicitly contrasting them with a full invasion by a veteran army. Revolutionary-era discourse similarly distinguished large invasions from small raids. The 1781 Benedict Arnold raid on Richmond (in the American Revolution) was described in period dispatches as an incursion aimed at burning supplies, not an occupation. In fact, later legal commentary notes that in 1780s writings “predatory incursion” was used to mean exactly such smaller-scale attacks

Likewise, British authorities often used “irruption” or “foray” for raids by American rebels or their French allies, reserving “invasion” for a full-scale campaign. No intent of population control. Crucially, neither term in the 18th-century usage implies anything like immigration. All definitions emphasize hostile force (“enemy,” “army,” “conquest,” “plunder,” “encroachment”)

They do not suggest migration, or criminal activity unrelated to war. “Predatory,” in context, modifies “incursion” to highlight the plundering motive of a raid – again, something a belligerent army or mercenaries would do, not lawful migrants. Early political theorists likewise saw invasion as a form of war (Locke’s Second Treatise, for example, treats invasion as war against civilian rights) and did not use it for immigration.

Relation to the Alien Enemies Act

Original intent. The Alien Enemies Act was part of a group of 1798 laws passed amid threatened war with France. Its wording – “war…or…invasion or predatory incursion…against the territory” – reflects the 18th-century meanings above. Congress used broad language to ensure authority in wartime situations: if a foreign nation invaded U.S. soil, or even raided it (a predatory incursion), the President could treat aliens from that nation as enemies. In effect, both terms meant hostile actions by a government or army – events akin to acts of war – and the statute gave the wartime executive power to remove aliens in that event. Modern interpretations. In today’s context, some have argued (for example, invoking the law for border enforcement) that “invasion” could include, say, mass illegal immigration and that “predatory incursion” could apply to cross-border criminal gangs. But the 18th-century usage makes clear this is a misreading. At the Founding and in U.S. practice, invasion always meant a military attack by a foreign state

Contemporary analyses of the Act confirm this: for instance, a recent report notes that the terms in the Act refer to “military actions indicative of an actual or impending war,” not ordinary crime or migration

Thus the original intent behind the law was to address wartime threats by foreign powers – either invasion or hostile raids – not to regulate peacetime immigration or criminal activity.

Summary

In summary, late-18th-century definitions and usage show that an “invasion” was understood as an armed attack by a foreign power to conquer or plunder territory while a “predatory incursion” denoted a limited raid by armed detachments for plunder or sabotage

Neither term implied control of U.S. territory by foreigners; both imply hostility by a foreign government. The Alien Enemies Act’s use of these terms thus reflects the wartime context of 1798: it is triggered by warlike acts of a foreign power (invasion or raid) against the United States. These historical meanings align with the Act’s original purpose (wartime authority) and contrast sharply with any modern proposal to invoke the law for nonmilitary purposes.

 

The Federal District Court of Vermont released Mohsen Mahdawi from detention on April 30, Judge W, Goeffrey Crawford.

Petitioner’s Motion for Release (Doc. 19) is GRANTED. The court orders the release of Mohsen Madawi on his personal recognizance during the pendency of this habeas proceeding. His release is subject to the following conditions: That he reside in Vermont; That he is permitted to travel to New York State for educational purposes or to meet with his lawyers or as otherwise ordered by the court; That he attend all court hearings in this case in person unless excused by order of the court.

Excerpt:

The court also considers the extraordinary setting of this case and others like it. Legal residents-not charged with crimes or misconduct-are being arrested and threatened with deportation for stating their views on the political issues of the day. Our nation has seen times like this before, especially during the Red Scare and Palmer Raids of 1919-1920 that led to the deportation of hundreds of people suspected of anarchist or communist views. In Colyer v. Skeffington, 265 F. 17 (1920), Judge Anderson of the District of Massachusetts granted habeas relief to multiple immigrants detained for their political beliefs. His decision was instrumental in bringing an end to the moral panic that gripped the nation and its officials. Similar themes were sounded during the McCarthy period in the 1950s when thousands of non-citizens were targeted for deportation due to their political views. Ellen Schrecker, Immigration and Internal Security: Political Deportations During the McCarthy Era, Vol. 60 Sci. & Soc’y 393 (1996). Again, the fever passed, but not before Justice Jackson was moved to dissent in US. ex rel. Knauff v. Shaughnessy, 338 U.S. 537,317 (1950), writing in a habeas case concerning the exclusion of a German war bride:

“Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern.”

Justice Minton’s majority decision is not much remembered. The wheel of history has come around again, but as before these times of excess will pass. In the meantime, this case-like Colyer and Knauff-is extraordinary in the sense that it calls upon the ancient remedy of habeas to address a persistent modem wrong.