A federal judge has ordered the Trump administration to facilitate the return to the U.S. of a group of Venezuelan migrants who were sent to a maximum security prison in El Salvador last year under the Alien Enemies Act. The 137 Venezuelans the ruling applies to were deported to the notorious Center for Terrorism Confinement, or CECOT, in the Central American country, under the rarely-used Alien Enemies Act, despite an emergency ruling ordering the flight to be returned to the U.S.
What changed
U.S. District Court Judge James Boasberg ruled the government must pay to fly back or accept at a US port of entry any of the men who are now in countries other than Venezuela. U.S. officials must provide the men in third countries who wish to fly back to U.S. with a boarding letter, and the government must cover their airfare. Lawyers for the Venezuelan men were given until Feb. 27 to inform the judge of the number of plaintiffs who want to travel on their own to a U.S. port of entry or wish to be flown from a third country to the U.S. for court proceedings.
The judge’s order does not apply to those who currently remain in Venezuela, citing ongoing tensions between the U.S. and Venezuelan government following the removal of former Venezuelan President Nicolas Maduro.
Why it matters
This ruling establishes that the government cannot simply deport noncitizens to a third country and claim courts lack jurisdiction to order their return. The judge had determined that removals were in defiance of an order that required the Department of Homeland Security to turn around planes bound for a Salvadoran prison with more than 200 Venezuelans on board.
For removal defense practitioners, the decision signals that invoking the Alien Enemies Act—even a 1798 wartime statute—does not insulate the government from due process obligations. The 137 men were later returned to Venezuela in a prisoner exchange, with some who have since managed to leave Venezuela now in a third country and interested in clearing their names. Immigration counsel representing detained noncitizens facing Alien Enemies Act removal should advise clients of their right to seek judicial review and potential return to the U.S. for habeas proceedings.
Way forward
- For plaintiffs’ counsel: If your client is one of the 137 Venezuelan deportees or similarly situated, confirm their current location (third country vs. Venezuela) and file a notice with the D.C. District Court by the deadline indicating whether they wish to return for court proceedings.
- For immigration attorneys: Monitor Boasberg’s implementation of the remedy order. The judge has signaled openness to additional legal claims challenging the Alien Enemies Act proclamation itself, filed by both those who return and those remaining overseas.
- For DHS adjudicators and ICE: Expect Alien Enemies Act designations to face heightened judicial scrutiny on due process grounds. Ensure clear documentation of individual threat assessments and gang membership bases, as courts will require meaningful opportunity for noncitizens to rebut allegations.
- For appellate counsel: The 5th Circuit and potentially the Supreme Court will continue weighing whether the Alien Enemies Act can be invoked during peacetime against non-state actors (gangs), making this ruling part of a broader appellate record on the scope of the statute.
Disclaimer
This article is written for informational purposes only and does not constitute legal advice. While we work to provide accurate information based on publicly available sources, immigration law and policy change frequently and without notice. Always consult a licensed immigration attorney to evaluate your specific case and verify current policy against the primary source documents linked above. The information here reflects the state of law as of the publication date and should not be relied upon for filings or case strategy without independent verification.