The American Civil Liberties Union (ACLU) asked the Supreme Court on Friday to immediately intervene to block the Trump administration from deporting Venezuelan migrants being held in Texas to El Salvador under the rarely used Alien Enemies Act.
The ACLU’s emergency application says many migrants are already on buses, “presumably headed to the airport” to be deported to a notorious Salvadoran megaprison where an initial round of more than 100 migrants were sent last month.
“Emergency relief is necessary not only to preserve the status quo and prevent permanent and irreversible harm to Applicants, but also to preserve the courts’ jurisdiction, in light of the government’s position that it need not return individuals, even those mistakenly removed,” the application states, referring to the case of Kilmar Abrego Garcia.
The Supreme Court application is one of three courts considering the ACLU’s plea for an immediate intervention. The group has filed similar requests with the 5th U.S. Circuit Court of Appeals and U.S. District Judge James Boasberg, who serves in the nation’s capital.
At a hastily scheduled Friday evening hearing before Boasberg in the lower court, Deputy Assistant Attorney General Drew Ensign indicated there are no planned flights Friday or Saturday, pushing back on the ACLU’s assertion.
Last week, the Supreme Court rejected the ACLU’s original attempt to block President Trump’s invocation of the Alien Enemies Act, to swiftly deport alleged gang members, saying the migrants needed to challenge their removals through a habeas petition, which must be filed where someone is physically detained.
The ACLU has since filed multiple class-action suits in judicial districts across the country in which the group says Venezuelan men are being held by immigration authorities under the possibility they will be removed under the rarely used wartime law.
The law enables migrants to be summarily deported amid a declared war or an “invasion” by a foreign nation. The law has been leveraged three previous times, all during wars, but Trump contends he can use it because the Venezuelan gang Tren de Aragua is effectively invading the United States.
The case at the Supreme Court arises from the Northern District of Texas, where the ACLU sued on behalf of two migrants, referred to in court filings by their initials, A.A.R.P and W.M.M.
Lower courts rejected requests to immediately block administration officials from removing migrants being held in the district after the government gave assurances the two plaintiffs would not be removed while their challenge is pending.
But the ACLU is now raising concerns that the government has begun to deport other members who are part of the ACLU’s proposed class.
“Significantly, the relief sought here does not seek to prohibit the government from prosecuting any individual who has committed a crime,” the ACLU wrote.
“Nor does it seek release from immigration detention or prohibit the government from removing any individual who may lawfully be removed under the immigration laws. It asks only that this Court preserve the status quo so that proposed class members will not be sent to a notorious prison in El Salvador before the American judicial system can afford them due process,” the application continued.
By default, the request will go to Justice Samuel Alito, who handles emergency appeals arising from the 5th U.S. Circuit Court of Appeals. He could act on the request alone or refer it to the full court for a vote.
In the meantime, the ACLU has asked Alito to issue an administrative stay blocking the deportations until the Supreme Court can resolve the application.
Updated 6:48 p.m.
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