Federal judges in New York and Texas on Wednesday took legal action to block the government from moving five Venezuelans out of the country until they can fight the government’s attempt to remove them under a rarely invoked law that gives the president the power to imprison and deport noncitizens in times of war.
The men were identified as belonging to the Tren de Aragua gang, a claim their lawyers dispute.
Three men were being detained in a facility in Texas, while two more were being held in an Orange county, New York, facility. One man in Texas is HIV-positive and fears lacking access to medical care if deported.
Judge Fernando Rodriguez Jr signed a temporary restraining order in Texas while Judge Alvin K Hellerstein said at a New York hearing that he planned to sign a temporary restraining order as well to block removals while the court challenges proceed.
The actions came after civil liberties lawyers in Texas and New York sued in defense of the Venezuelans who are at risk of removal from the US under the the 18-century Alien Enemies Act.
All five men were identified by the government as belonging to the Tren de Aragua gang.
The men were identified as gang members by physical attributes using the “alien enemy validation guide”, in which an Ice agent tallies points by relying on tattoos, hand gestures, symbols, logos, graffiti and manner of dress, according to the ACLU. Experts who study the gang have told the ACLU the method was not reliable.
The lawsuit sought class action status to affect others who were detained and faced similar deportation. The ACLU had requested a temporary restraining order to keep their petitioners in the US and for the judge to declare the Alien Enemies Act, which the Trump administration is invoking, unlawful.
In New York, Hellerstein set a hearing for 22 April to decide whether a temporary restraining order he planned to sign on Wednesday would be turned into a preliminary injunction. The case pertains to two Venezuelan men who also face deportation under the Alien Enemies Act. Civil liberties groups have sued the government on behalf of the two men, one 21 the other 32, who were being held by immigration authorities at a jail about 45 miles (72km) north-west of New York City.
The Alien Enemies Act has only been used three times in the past, during the war of 1812, the first world war and the second world war, when it was used to justify the mass internment of people of Japanese heritage while the US was at war with Japan.
The United States is not at war with Venezuela, but Donald Trump’s administration has argued that the US was being invaded by members of the Tren de Aragua gang.
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US immigration authorities already have deported more than 100 people and sent them to a notorious prison in El Salvador without letting them challenge their removals in court.
On Monday, the supreme court allowed the Trump administration to use the wartime law to deport Venezuelans accused of being gang members, but it also ruled the administration must give Venezuelans the chance to legally fight any deportation orders.
The ruling did not address the constitutionality of the act. The ACLU is asking the judge in Texas to decide on whether it was lawful to use the Alien Enemies Act.
The administration plans to expand its use for members of the Salvadoran gang MS-13, Todd Lyons, the acting Immigration and Customs Enforcement (Ice) director, told reporters on Tuesday during Border Security Expo, a trade show in Phoenix.
