A federal judge in Denver extended her order that temporarily restricts the Trump administration from deporting Venezuelan immigrants from Colorado under the 18th-century Alien Enemies Act.
In a new temporary restraining order Tuesday, U.S. District Judge Charlotte Sweeney said federal immigration officials must provide a 21-day notice if they plan to use the act to deport Venezuelans detained in Colorado — and detainees must be given a chance to contest their removal.
Sweeney said the current terms of the restraining order sought by the American Civil Liberties Union of Colorado will expire May 6, but may be extended.
“We know that they are… trying to strip people of due process, round them up and disappear them from the country,” said Tim Macdonald, the ACLU of Colorado’s legal director. “They have shown they’re trying to do that and trying to evade judicial review. This order, for now, puts a stop to that in Colorado.”
The White House did not respond to requests for comment Tuesday.
Sweeney cited the U.S. Supreme Court’s weekend order barring the removal of anyone from North Texas, where the ACLU had contended the administration was preparing to deport Venezuelans accused of being members of the Tren de Aragua gang under the Alien Enemies Act of 1798 without giving them the legal notice required under a prior ruling.
The Supreme Court earlier this month allowed deportations under the act, but required the government to give those targeted a “reasonable” chance to contest the removals in court. The act has only been invoked three times in history, most recently in World War II, and the Supreme Court has yet to hear arguments about whether Trump can use it against a gang.
Sweeney’s initial restraining order in the Colorado case, granted last week, blocked federal officials from removing “noncitizens in custody in the District of Colorado who were, are or will be subject to” President Donald Trump’s invocation of the Alien Enemies Act from both the state and the country.
Noncitizens can be deported under the new terms of the temporary restraining order, but only with proper notice.
“Such notice must state the government intends to remove individuals pursuant to the Act and Proclamation,” Sweeney wrote of the new 21-day requirement. “It must also provide notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government’s intent to remove them. Such notice must be written in a language the individual understands.”
Sweeney said the government failed to meet these standards before, at most providing one phone call to detainees and a verbal notice of what was happening that wasn’t guaranteed to be in a language they understood.
The government’s previous notice procedure also gave no timeframe for the removal process and didn’t inform the individual how to — or even that they could — contest their removal, Sweeney said.
Federal officials still cannot remove immigrants from Colorado to avoid complying with the restraining order, she wrote.
“The elimination of due process here threatens all of us,” the ACLU’s Macdonald said.
While the Trump administration’s use of the Alien Enemies Act — legal or not — only applies to noncitizens, Macdonald said it’s a short step to the erosion of civil liberties and civil rights for everyone.
“If the government can disregard the Constitution and disregard the law, we should all be terrified,” he said. “Luckily, this judge said no, not here, not in Colorado.”
Sweeney approved the first temporary restraining order last week after the ACLU sued Trump and members of his administration on behalf of two Venezuelan men, “and others similarly situated,” who have been accused of being part of the Tren de Aragua gang.
The ACLU said the men feared “imminent risk of removal” under Trump’s proclamation “without any hearing or meaningful review.”
According to Tuesday’s order, the ACLU has officially requested the court to allow its lawsuit to proceed as a class action on behalf of the entire group affected by Trump’s proclamation. Sweeney provisionally certified the ACLU’s request, but government officials have until April 28 to respond to the motion.
The administration has used the Alien Enemies Act to send immigrants to a notorious mega-prison in El Salvador — including, according to Macdonald, at least 11 Colorado residents.
While government attorneys said during a Monday hearing that immigration authorities are not currently trying to remove the two Venezuelan plaintiffs under the act, Sweeney said that could change “at any time.” There “is no definite evidence” that immigration officials won’t change their status in the coming weeks, she wrote Tuesday.
“The consequences here would be extremely grave if I denied the (temporary restraining order) and two days later, upon finding ‘new evidence,’ these two individuals are designated as TdA and subject to removal,” Sweeney said during Monday’s hearing.
She said Tuesday that the restraining order does “little more” than ensure that the government adheres to the requirements already laid out by law and the U.S. Supreme Court: to give people enough time and notice to pursue relief through due process.
Sweeney also wrote Tuesday that “skepticism” of Trump’s proclamation “is required.” The basis of the Alien Enemies Act and Trump’s use of it in his proclamation do not match up, the judge wrote.
The Associated Press contributed to this report.
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