The Trump administration’s invocation of the Alien Enemies Act (AEA) for use against alleged members of the Venezuelan transnational organization Tren de Aragua (TDA) has brought a flurry of legal activity and media interest. It has also brought attention to the case of a wrongly deported man, Kilmar Abrego Garcia, whom the Department of Justice conceded was erroneously deported to El Salvador due to an “administrative error.” What ties these two matters together and what makes this period unprecedented and exceedingly dangerous (for foreign nationals and U.S. citizens alike) is the use of a Salvadoran prison to indefinitely detain these individuals. The use of the prison, called CECOT (Centro de Confinamiento del Terrorismo), has the potential to put these individuals beyond the reach of U.S. courts and make it harder for them to challenge their indefinite and illegal detentions. This article will summarize the events of March 15, 2025, regarding the invocation of the AEA, the separate flight that same day removing Mr. Abrego Garcia, the ongoing legal challenges to both the AEA and the detention of Mr. Abrego Garcia, as well as what we can expect moving forward.  

What happened on March 15, 2025? 

In the afternoon of March 15, 2025, an executive order invoking the AEA related to members of TDA was published on the White House website. The executive order had been signed the evening of March 14, 2025, but was not made publicly available until 3:53 p.m. ET on March 15, 2025.  

In the early hours of March 15, 2025, before the executive order invoking the AEA was publicly released, the American Civil Liberties Union (ACLU) filed a complaint in federal district court in the District of Columbia challenging what was then only a suspected invocation of the AEA. Attorneys from across the country began reporting their suspicions that clients were being moved to detention centers based on the upcoming invocation of the Act and that there was a likelihood that these individuals would be transferred into the custody of a foreign government. Five plaintiffs were named in this initial lawsuit, J.G.G. v Trump. Judge James Boasberg of the federal district court in D.C. issued a temporary restraining order (TRO) barring the deportation of the five named plaintiffs under the AEA. Later that day the TRO was amended to include a nationwide class of individuals who may be subject to it.  

Judge Boasberg made clear in his oral order that any planes in the air must be returned to U.S. airspace and that custody of these individuals must not be relinquished to a foreign government. Despite this clear command, two planes that had already departed U.S. airspace but had not yet arrived in El Salvador continued en route to El Salvador. The Washington Post has a detailed timeline available of the flight information. Custody of these individuals was then relinquished to the Salvadoran government, in direct contravention of Judge Boasberg’s clear order, and these individuals were imprisoned at CECOT. 

 A third plane took off after the written order was issued. The government claims this did not violate Judge Boasberg’s order, as it was filled only with individuals with final orders of removal under the Immigration and Nationality Act (INA). Mr. Abrego Garcia, who was being sent to El Salvador in direct violation of an immigration judge’s order granting him withholding of removal, was on this third plane. Since March 15, 2025, hundreds of men (mostly Venezuelan nationals) have been imprisoned in El Salvador with essentially no access to the outside world.  

Why is the administration putting people in prison in El Salvador?  

The administration has close ties to the authoritarian president of El Salvador, Nayib Bukele, and there are reports that the U.S. government is paying the Salvadoran government six million dollars to imprison these individuals. This arrangement is being carried out to put these individuals beyond the reach of the U.S. courts — to claim that U.S. courts have no authority to intervene and compel actions to return even wrongly deported individuals.  

What is the status of the J.G.G. case and the Alien Enemies Act litigation? 

The government appealed Judge Boasberg’s issuance of the TRO in the case and the matter soon reached the Supreme Court. In a divided 5-4 decision, issued on April 7, 2025, the Supreme Court agreed with the government that Judge Boasberg had erred in issuing the TRO because the Administration Procedures Act (APA) was the wrong vehicle for relief. Rather than seeking a nationwide restraining order based on the APA, the proper vehicle, per a bare majority of the Court, was a habeas corpus petition filed in the district of confinement. The Court emphasized unanimously, however, that due process must be provided to any such individuals prior to use of the AEA against them. Specifically, the government must give them notice and a meaningful opportunity to respond to such allegations. The Court emphasized that “[t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Note that the J-G-G- case itself remains alive, as the ACLU has recently filed an amended complaint in the same case on behalf of Venezuelan men threatened with imminent removal or who have already suffered removal under the AEA. Importantly, this amended complaint includes the men now detained in CECOT, as the ACLU argues that the United States has constructive custody over those individuals and they thus must be allowed to challenge their detention. Since the Supreme Court’s decision on April 7, 2025, multiple district courts in New York, Texas, Pennsylvania, and Colorado, have issued restraining orders against the use of the AEA. In a notable case out of the United States District Court for the Western District of Texas, a district court judge issued a blistering decision slamming the government’s lack of evidence as to the alleged TDA membership for the two plaintiffs in question. The court also held that the government must provide at least 21days to challenge any TDA or AEA allegations.

Despite these positive developments out of the district courts, these TROs do not apply nationwide. In addition, the process of filing habeas petitions is complex, particularly for those individuals in ICE custody with limited access to attorneys.  

On April 18, 2025, the ACLU became aware that a new group of Venezuelan nationals were likely to be transferred to CECOT pursuant to the AEA. Some had received a notice advising them that they were to be deported pursuant to the AEA. This notice was written only in English and provided no indication of how they could challenge this designation. Notably, the detainees in question were detained at the Bluebonnet ICE detention center in the District of North Texas, which had not issued a decision restraining the use of the AEA. The ACLU moved quickly, seeking relief from the federal district court in North Texas, the Fifth Circuit, and the district court in Washington, D.C., without success. It then filed for emergency relief with the Supreme Court. In an order issued around 1 a.m. ET on Saturday April 19, the Court temporarily restrained the use of the AEA against these individuals. Many commentators have noted how unique the Supreme Court’s intervention was in this case, with the order being issued in the wee hours of the morning before the government had even responded. It gave some hope that the Court might finally have become aware of how the administration’s actions were threatening the rule of law and the devastating impact if these deportations were to go forward.  

What about the merits of the invocation of the AEA? 

It is worth noting that so far courts have not reached the merits of the administration’s arguments regarding the AEA. The TROs issued so far have primarily focused on the due process concerns — that individuals must be given notice and an opportunity to challenge their detention. However, there are strong arguments that the administration using the AEA in this way is unlawful, given the plain text of the Act. The law allows for the apprehension and summary removal of persons as “alien enemies” anytime there is a “declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened.” It is obvious that the United States is not at war with Venezuela. The government has tried to argue that the Venezuelan government is intricately linked to TDA and directing the “invasion” of the United States. This argument would seem to fail based on the fact that there is simply no evidence to support this. Even classified reports issued by U.S. intelligence agencies fail to support a link between the Venezuelan government and TDA.  

 What about the wrongful deportation of Kilmar Abrego Garcia? 

As noted above, Mr. Abrego Garcia was deported pursuant to the INA, and not the AEA. He is a Salvadoran national and the AEA was invoked only as to members of TDA. However, his deportation was illegal and unlawful because of an Immigration Judge order issued in 2019 that forbade his deportation to El Salvador. Mr. Abrego Garcia was granted “withholding of removal” under INA § 241(b)(3). An Immigration Judge found that it was more likely than not that he would be persecuted in his home country of El Salvador on account of a protected ground (his membership in the particular social group comprised of his nuclear family). The decision granting him relief notes that the sole reason that he was denied asylum was because his application was time-barred without exception. No criminal or security bars existed to bar his grant of asylum. Despite the administration’s ongoing attempts to smear Mr. Abrego Garcia, the fact remains that his deportation was illegal. If the administration wished to deport him to El Salvador, the way to do that was to move to reopen his removal proceedings and seek to terminate his grant of withholding of removal by showing that one of the grounds for termination of his status applied.

A district court in Maryland ordered the administration to “facilitate and effectuate” the return of Mr. Abrego Garcia’s return to the United States. The Fourth Circuit affirmed, as did a unanimous Supreme Court. However, the Supreme Court changed the language slightly from the district court’s original language, noting the following:

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. 

Unfortunately, the administration has grasped on this language to argue that it has no authority to compel El Salvador to do anything. Such an assertion is, of course, ridiculous on its face. The United States is paying the Salvadoran government to imprison Mr. Abrego Garcia and others. The Salvadoran government consented under diplomatic pressure to allow a visit with Maryland senator Chris Van Hollen. A simple phone call from the administration requesting that El Salvador release Mr. Abrego Garcia to U.S. custody would likely be sufficient. There is no evidence that they have done even that.  

Has the administration violated any court orders?  

The administration has arguably violated court orders in multiple ways in these two separate cases. The first is the deportation of Mr. Abrego Garcia to El Salvador despite an immigration court barring his removal to that very country and the administration’s ongoing refusal to facilitate his return. The second is the initial relinquishing of the two planeloads of individuals to Salvadoran government custody hours after Judge Boasberg forbid them from doing exactly that.  

What can be done about the violation of court orders and the ongoing unlawful detention of these individuals?  

There are open contempt proceedings in two separate district courts. In the Abrego Garcia case in the District Court in Maryland, Judge Xinis ordered an expedited timeline for discovery and indicated that she was weighing a finding of contempt against the administration. The government immediately appealed, and the Fourth Circuit rejected the appeal. In an unusual move, the Fourth Circuit wrote to explain its reasoning in an eloquent decision by conservative Judge Wilkinson. The entire decision is worth reading as the judge emphasizes all that is at stake in these matters.  His decision states:

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. 

Separately, in the D.C. case, Judge Boasberg issued a lengthy 46-page decision finding probable cause to find contempt of his March 15 order — a decision that is also worth reading. Judge Boasberg emphasized that the matter was not moot simply because the Supreme Court had vacated his original TRO. Rather, he noted that the proper course for the government was to appeal his order, not to violate it. He provided the government a deadline to “purge the contempt.” If they opt not to, he noted that he will proceed to identify the contemnor(s) and refer the matter for criminal prosecution. Note that this decision is temporarily paused as the DC Circuit considers the government’s appeal.

The government could easily avoid the embarrassment and criminal proceedings of contempt and further discovery in both these matters by simply returning the wrongly deported individuals. Thus far, they seem unwilling to do so, although it is also true that political pressure on them seems to be mounting.  

What can advocates do?  

Those representing detained Venezuelan clients must be especially attuned to any efforts by the government to invoke the Alien Enemies Act against them. Again, since there is no longer a nationwide restraining order, those detained throughout the country may be at risk. Be responsive to calls from clients from detention centers if they indicate they are being moved. Contact the ACLU, which has been on the forefront of this litigation, if you receive any indication of the use of the AEA against a client. Remember what we are discussing here is not simply deportation; it is indefinite detention in a foreign torture prison with no contact with family, friends, or attorneys.  

Beyond that, contact congressional representatives about this ongoing human rights violation. Make the administration feel political pressure about their violation of constitutional rights and court orders. Share the stories of these wrongly detained men. Excellent reporting has been done to set forth how wrong these deportations and imprisonments are. It seems in many cases that the administration focused solely on the men’s tattoos and nothing beyond that. 

 Speak about Andry — the gay Venezuelan stylist whose crown tattoos were a tribute to the Reyes Mayos (three kings) pageants in his home town in Venezuela and not a gang symbol.  Talk about Neri — the man whose “autism awareness” tattoo was done in honor of his younger brother and not because he was a member of TDA. Remember Arturo -- an— accomplished Venezuelan musician whose tattoos were a tribute to his mother, his homeland, his love of music, and his dreams for a brighter future. All these men have been vanished without a trace as of March 15, 2025. 

  And finally, remember that the government's evidence against Abrego Garcia consisted primarily of his wearing a Chicago Bulls hat and hoodie, as well as a vague, uncorroborated tip from an unnamed informant. This is the evidence, along with the informant's claim that Garcia belonged to MS-13's "Western" clique in New York (a place he'd never been), was enough for the government to arrest, detain, and fly him to a prison in El Salvador.

Conclusion:  

This administration continues to sink to new lows in its violation of law, morality, and human rights. Following the family-separation atrocities of 2018, when young children were forcibly separated from their parents for months and even years, it was hard to think of a more grotesque human rights violation. However, they may have managed to top themselves in 2025.  

The public interest lawyer, Bryan Stevenson, wrote that “[t]he true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.”  Put slightly differently, to quote Jesus in Matthew 25:40: “whatsoever you do to the least of these my brothers and sisters, you do unto me.” The administration has gleefully shown the horrific and dark nature of its character by targeting the most vulnerable and marginalized members of society.  

Many have risen in opposition, showing their character. Special credit must be given to the ACLU whose quick work, especially on April 18, helped save dozens from a horrific fate. Mr. Abrego Garcia’s attorneys have advocated effectively for him. Journalists have worked tirelessly to document the administration’s errors. Even Congress has begun to act, with Maryland Senator Van Hollen able to provide a bit of solace for Mr. Abrego Garcia by assuring him that the world has not forgotten him but rather is fighting for him. Let us continue to advocate and fight for justice for all these wrongly detained men, “the least of these,” our immigrant brothers who deserve our special attention in these difficult times.