A Court of Appeals rejected on Wednesday an attempt by the government of US President Donald Trump to raise a court order that prohibits deporting migrants in an irregular situation under a law of the 18th century, used so far only in times of war.
The Trump government sent two airplanes with Venezuelan migrants to a megacárcel in El Salvador on March 15, after invoking a law of 1798.
Washington considers them members of the Aragua train, a group to which he declared a global terrorist organization. He did not contribute evidence.
The lawyers of several of the deported Venezuelans have declared that their clients are not members of the Aragua train, have not committed any crime and were taken as target mainly by their tattoos.
On March 15, James Boasberg, judge of a District Court of Washington, temporarily suspended deportations carried out on behalf of that law. The administration appealed.
A panel of three judges voted in favor, by two votes against one, to temporarily maintain the prohibition of expelling migrants under a law that had only been invoked during the 1812 war and the first and second world wars.
Judges Karen Henderson, appointed by Republican President George Hw Bush, and Patricia Millett, appointed by Democrat Barack Obama, voted in favor of keeping the temporal prohibition in force, while Judge Justin Walker, appointed by Trump, discrepted.
Millett said that Venezuelan migrants were expelled based solely on government accusations, without prior notice, without a hearing, without opportunity, any process, to demonstrate that they are not members of the Aragua Train gang.
If the government can choose to give up a fair and equal process for some people, you can do the same for everyone, he estimated.
The Secretary of Internal Security, Kristi Noem, visited the prison of El Salvador on Wednesday where Venezuelans are held.
Before arriving, Noem said on social networks that he will meet with the Salvadoran president, Nayib Bukele, to address the United States, the number of deportation flights and expulsions from violent criminals can increase.
“Better treatment” for Nazis
During a judicial view on Monday, the lawyer of the Department of Justice, Drew Ensign, said that the judge’s order represents an unprecedented and enormous intrusion in the powers of the executive arm and prevents Trump from exercising his powers in terms of war and foreign affairs.
Millett estimated, however, that the Nazis received better treatment than Venezuelans expelled to El Salvador when the foreign enemies law was applied during World War II.
Lee Gelernt, a lawyer of the American Union for civil liberties (ACLU), which filed a lawsuit against deportations along with other groups, applauded the judicial ruling.
The decision means that hundreds of individuals remain protected from being sent to a prison in a foreign country, without any due process.
Skye Perryman, president of Democracy Forward, insisted that President Trump must comply with the laws and do not allow him to use war powers when the United States is not at war and has not been invaded.
Boasberg, the Judge of the District Court, affirms that migrants subject to a potential deportation under the war law must be entitled to individualized hearings.
Trump has attacked Boasberg, even asking for his dismissal, which has earned him a public reprimand of the president of the Supreme Court, John Roberts.
The case concerns legal experts for the possibility that the administration ignores the court order and triggers a constitutional crisis.