This month, the Supreme Court ordered that Venezuelans facing deportation under an 18th-century wartime law be afforded due process, allowing them to challenge their removal in court.
On Thursday, a declaration from an immigration official detailing the Trump administration’s compliance process was unsealed. The official stated that detainees would receive notices of their impending removal in English, along with one phone call and at least 12 hours to express their desire to contest the deportation. If they failed to file in court within 24 hours after notifying authorities, they could be deported, potentially to a notorious terrorism prison in El Salvador.
The disclosure prompted legal experts to express concern, predicting that judges, including those on the Supreme Court, would likely view the process unfavorably. Law professor Michael J. Klarman criticized the administration's interpretation of due process, comparing it unfavorably to past Supreme Court rulings that set higher standards for government actions affecting individuals' rights.
Klarman referenced the 1970 case Goldberg v. Kelly, where the Court established that individuals must be given notice and the opportunity to contest government actions before their welfare benefits are revoked. He emphasized the severity of the current situation, noting the difference between losing welfare benefits and facing potential internment.
Critics highlighted several issues with the government's procedure, including the language barrier for Spanish-speaking detainees, the impracticality of securing legal representation within a limited timeframe, and the lack of provisions for pausing the legal challenge clock outside business hours. These concerns raised doubts about the fairness and adequacy of the process.
The unsealing of the declaration is part of the administration's efforts to deport hundreds of Venezuelan migrants purportedly linked to the Tren de Aragua gang. The Supreme Court is currently reviewing an emergency application to halt the use of the wartime law for deportations, with a ruling expected soon. Meanwhile, several legal challenges by detainees are pending in federal courts nationwide.
In mid-March, the president announced the intention to use the Alien Enemies Act of 1798 to deport gang members, a law that grants broad authority to remove individuals defined as "alien enemies" during times of war or invasion.
The administration has already begun deportations, sending Venezuelan migrants to El Salvador, where they are held in a facility designed for terrorists. The Supreme Court previously stated that migrants must receive reasonable notice to challenge their deportation effectively.
Last week, following reports of deportation notices being issued to Venezuelans at a Texas detention center, the American Civil Liberties Union (A.C.L.U.) filed legal challenges, including one to the Supreme Court. In a rare overnight ruling, the Court paused deportations while reviewing the case.
A.C.L.U. attorney Lee Gelernt criticized the decision to seal the notice procedure, arguing that transparency is essential for understanding the removal process. The A.C.L.U. intends to use the unsealed declaration as evidence in ongoing legal challenges.
Law professor Brandon L. Garrett noted that the government's removal procedures offer fewer avenues for challenging deportation than other legal matters, raising concerns about potential injustices and constitutional violations.
President Trump has expressed doubts about allowing individuals accused of illegal entry to challenge their deportations in court, suggesting that doing so would be impractical and time-consuming.
Georgetown law professor Cliff Sloan drew historical parallels, likening the treatment of Venezuelan migrants to past injustices, such as the denial of due process to Japanese Americans during World War II and detainees at Guantánamo Bay. He described the administration's deadlines as unrealistic and indicative of a sham due process.
During oral arguments in one legal challenge, federal appeals court Judge Patricia A. Millett remarked on the inadequate notice provided to Venezuelan migrants, noting that they received less time to contest their removals than German nationals during World War II, further highlighting the gravity of the situation.