By Stephen Dinan – The Washington Times – Wednesday, March 26, 2025

A federal appeals court on Wednesday upheld a judge’s blockade on President Trump using the Alien Enemies Act to deport Venezuelan gang suspects, saying the administration appears to be stretching the law too far.

The 2-1 decision by the U.S. Circuit Court of Appeals for the District of Columbia leaves U.S. District Judge James Boasberg’s restraining order in place, marking a setback for Mr. Trump.

Judge Karen L. Henderson said the danger of allowing deportations that later turn out to be erroneous was too great at this point to lift Judge Boasberg’s blockade, which she said is in place to give all sides more time to figure out whether what the government is doing is legal.

She also cast doubt on that question, saying at this point the administration has made only weak arguments for why illegal immigrants from the Tren de Aragua gang constitute an “invasion” or “predatory incursion” under the terms of the Alien Enemies Act, a 1798 law Mr. Trump hopes to use to speed the deportations.

Judge Henderson, a George H.W. Bush appointee, said the founders understood invasions and incursions to be acts of war by a foreign nation and “migration alone did not suffice.”

Siding with her was Judge Patricia Millett, an Obama appointee who was more emphatic in rejecting the Trump administration’s arguments.

She said the way the administration has handled the deportations so far lacks “even a gossamer thread of due process” for the gang suspects — many of whom, she said, may not actually be members of the gang at all.

Dissenting was Judge Justin Walker, a Trump appointee, who said the gang members were pursuing their case the wrong way.

He said they can challenge their deportations through habeas claims, a powerful but narrow challenge that must be brought in courts in the locality where they are being detained. But they chose instead to mount a class action lawsuit in the court in Washington, where none of them are detained.

Judge Walker said he would have lifted Judge Boasberg’s blockade on deportations.

Mr. Trump has declared TdA connected to the Venezuelan government and a foreign terrorist organization. He has also declared that it is engaged in an “invasion” or “incursion” into the U.S., which triggers the Alien Enemies Act.

That law, he says, allows faster deportation without having to await full immigration hearings.

With that power in hand, three planeloads of Venezuelan migrants were flown to El Salvador on March 15, where they were transferred to that country’s main terrorist prison. The U.S. is paying about $20,000 per person per year for El Salvador to hold them.

Lawyers for Venezuelan migrants say Homeland Security swept up non-gang members in its deportations, including some people who were actually victims of the gang.

Judge Boasberg ordered the planes grounded and said any in the air needed to be turned around. The administration continued the flights anyway, leading to a clash that’s turned bitter on all sides.

Mr. Trump has been so dismayed by the rulings that he has called for Judge Boasberg’s impeachment. And the Justice Department has asked the appeals court to boot Judge Boasberg from the case.

Judge Millett, though, leaped to Judge Boasberg’s defense Wednesday.

“The district court has been handling this matter with great expedition and circumspection,” she said.

Wednesday’s decision came just two days after oral argument before the appeals-court panel.