This article provides updates on the litigation surrounding the use of the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang, Tren de Aragua (TDA). It provides additional information since CLINIC’s first article on this topic was published at the end of April 2025. The first article can be found here. Since that publication, there have been several developments of interest in the case, which will be summarized below.

District Court Rulings on the Merits of the Invocation of the Alien Enemies Act

First, district courts have begun to reach the merits of Trump’s invocation of the AEA against alleged TDA members. Recall that in a divided decision issued on April 7, 2025, the Supreme Court determined that the proper method for individuals to challenge the AEA was through a habeas corpus petition filed in the district court where the person is confined. There is no dispute as to the due process issue — the Supreme Court has now affirmed on two occasions that noncitizens are entitled to “notice and an opportunity” to be heard before the AEA can be used against them. The open question in the habeas litigation is the merits of the invocation of the AEA as to these individuals, given that the United States is not at war with Venezuela and there is no evidence that the Venezuelan government is directing this so-called “invasion” of the United States. (In fact, there is evidence that it is not.)

On this point — as to the merits of the invocation of the Alien Enemies Act — the district courts thus far have reached different conclusions. At least four district courts have found that the invocation of the AEA plainly fails on the merits because the United States is not at war with Venezuela and the AEA is limited to actual or impending war. See D.B.U. v. Trump, ––– F.Supp.3d ––––, ––––, 2025 WL 1163530, at *7 (D. Colo. Apr. 22, 2025); J.A.V. v. Trump, ––– F.Supp.3d ––––, 2025 WL 1257450 (S.D. Tex. May 1, 2025); G.F.F. v. Trump, ––– F.Supp.3d ––––, 2025 WL 1301052 (S.D.N.Y. May 6, 2025); M.A.P.S. v. Garite, No. EP-25-CV-00171-DB, 2025 WL 1622260 (W.D. Tex. June 9, 2025).

However, at least one other district court, in the Western District of Pennsylvania, deferred to the administration’s judgment that Venezuela is directing a “predatory incursion” of the United States, claiming that the judicial branch must defer to the president’s determination, as he may have access to intelligence not readily available to the public or the courts. A.S.R. v. Trump, No. 3:25-CV-00113, 2025 WL 1378784 (W.D. Pa. May 13, 2025). This court thus found the AEA proclamation lawful, but affirmed, as have all courts to consider the issue, the due process rights of individuals to challenge the invocation of the AEA as it applies to them personally.

The dispute among the district courts thus far has been on the threshold question of whether the invocation of the AEA was lawful in the first place. This question will no doubt be resolved by the Supreme Court at some point.

Supreme Court Ruling, Reaffirming the Due Process Rights of Those Subject to the Alien Enemies Act

On May 16, 2025, the Supreme Court issued an important decision on the AEA litigation, in the ongoing A.A.R.P. v Trump case, by reaffirming the due process rights of those accused of belonging to TDA. The Court emphasized that due process requires notice and the opportunity to seek habeas relief. The Court did not decide the period of notice that was required in any case but did note that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” Rather than deciding the appropriate time period, however, the Supreme Court remanded the case to the Fifth Circuit for further consideration of this issue.

Legal Challenges Permitted by Those Held at CECOT

A third important recent development was the decision issued by the district court in the J-G-G- litigation on June 4, 2025. The J.G.G. case began the AEA litigation, and its history is described further in CLINIC’s earlier article. The decision is a complicated one, with not all positive results for the plaintiffs in the case. Specifically, the court rejected the plaintiffs’ arguments that the Venezuelans currently being held in CECOT were in the “constructive custody” of the United States. While claiming that this was a “close question,” and while noting the government’s “troubling” behavior in the litigation up to this point, Judge Boasberg ultimately deferred to an affidavit prepared by a State Department official claiming that El Salvador retains custody over the men. The court did note, however, that it may revisit this ruling should other evidence come to light and felt obligated to warn the government of the criminal penalties for submitting false information.

Based on the court’s finding that the men in CECOT were not in constructive custody of the United States, the court determined that they could not directly access the writ of habeas corpus. However, the court determined that the men had due process rights in the United States, which were violated because they had not been given notice and the opportunity to contest their designation as “alien enemies.” The court further noted that the gang allegations against many of the men in CECOT ranged from “flimsy” to “frivolous.” The court did not specify any particular remedy but ordered that the government must “facilitate Plaintiffs’ ability to proceed through habeas and ensure that their cases are handled as they would have been if the Government had not provided constitutionally inadequate process.” Unfortunately, the district court’s decision is temporarily stayed while under review by the DC Circuit. Per Curiam Order, J.G.G., No. 25-5217 (D.C. Cir. June 10, 2025).

Compliance with Court Orders to “Facilitate” Returns

It remains to be seen what steps the government will take to comply with the J.G.G. court order (should the higher courts affirm Judge Boasberg’s decision), given its behavior in other litigation. Two separate judges have already ordered the government to “facilitate” the return of two men illegally deported to CECOT. These men are Salvadoran national Kilmar Abrego Garcia and a Venezuelan national known only as “Christian” who was illegally deported despite being protected from deportation by a settlement agreement in the case of JOP v. DHS (which allowed those who entered as unaccompanied children to pursue asylum in the first instance before USCIS).

Mr. Abrego Garcia was recently returned to the United States to face criminal charges relating to human smuggling. There are concerns that these charges have been politicized, as reflected by the fact that a supervising prosecutor in the criminal division in Tennessee resigned the same day that the indictment was secured. In a recent court filing in the district court in Maryland, his attorneys describe the government’s conduct throughout this entire proceeding:

The Government flouted rather than followed the orders of this Court and the United States Supreme Court. Instead of facilitating Abrego Garcia’s return, for the past two months Defendants have engaged in an elaborate, all-of-government effort to defy court orders, deny due process, and disparage Abrego Garcia. In its latest act of contempt, the Government arranged for Abrego Garcia’s return, not to Maryland in compliance with the Supreme Court’s directive to “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” but rather to Tennessee so that he could be charged with a crime in a case that the Government only developed while it was under threat of sanctions.

Mr. Abrego Garcia’s lawyers also filed a motion for discovery violations, outlining the government’s improper behavior throughout the period of litigation.

In the case of “Christian” the judge has ordered weekly status reports on his location and the efforts made to facilitate his return to the United States. Further developments on the case can be followed here.

Conclusion:

These cases have moved relatively quickly through the courts. However, they have not moved quickly enough to save the wrongly deported men from months of confinement in a Salvadoran prison. Remember that all men deported to CECOT on March 15, 2025, except for Mr. Abrego Garcia, have now been detained for more than three months without any contact with the outside world. CLINIC will continue to track developments in these cases as they unfold.