Donald Trump speaks at an election night watch party, Wednesday, Nov. 6, 2024, in West Palm Beach, Fla. (AP Photo/Alex Brandon).
Shortly after becoming the first judge to back Donald Trump’s authority to remove accused Venezuelan migrants under the Alien Enemies Act (AEA), a federal judge in western Pennsylvania dealt the plaintiffs in the class another blow, decertifying them as a potential class as they challenge their designation as alleged gang members under the 18-century wartime statute.
U.S. District Judge Stephanie Haines, who Trump appointed during his first term, on Tuesday issued an eight-page order formally disbanding the potential class of plaintiffs, reasoning that there were not enough individuals to support keeping the petitioners as a certified group as litigation moves forward.
According to the order, there are actually no potential class members remaining in the Western District of Pennsylvania, including the unnamed petitioner, a Venezuelan migrant identified in court documents as “A.S.R.,” as he has been moved to a different jurisdiction since filing his initial claim.
At a preliminary injunction hearing earlier this month, attorneys with the Justice Department notified the court that there were “zero individuals” in the jurisdiction who had been designated for detention or removal under the AEA.
“In his Motion and Brief, A.S.R. is requesting to certify a class that is limited explicitly to detainees in the Western District of Pennsylvania. The Court, however, possesses no evidence that there is a single noncitizen in custody in the Western District of Pennsylvania who was, is, or will be subject to the Proclamation and/or its implementation,” Haines wrote. “In other words, the government articulated, A.S.R. is requesting to certify a class that has no members.”
She concluded by writing that the petitioner’s “proposed class fails to meet the numerosity requirement.”
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Haines’ order was handed down shortly after she became the first judge to back Trump’s proclamation invoking the AEA on the merits, breaking with several of her colleagues — including Trump-appointed U.S. District Judge Fernando Rodriguez Jr. of Texas — all whom held that the administration’s effort failed to meet the preconditions prescribed by the AEA, which has only been invoked three times during wars that had been declared by Congress.
Under the AEA, the president is authorized to summarily remove “natives, citizens, denizens, or subjects” of a “hostile nation or government” when there is “declared war” against it or when it has “perpetrated, attempted, or threatened against the territory of the United States” an “invasion or predatory incursion.” In a controversial and novel use of the power, Trump declared that the Venezuelan gang Tren de Aragua (TdA) had engaged in an “invasion” or “predatory incursion” of the U.S. such that any member of the group was summarily removable under the Act.
Judges have repeatedly thwarted removals under the AEA since the first planes on March 15 flew migrants to a notorious terrorist prison in El Salvador — possibly in violation of a federal judge’s order to have the detainees returned to the country. Notably, the administration has admitted to “wrongfully” removing several individuals under the statute, though officials have made almost no effort to abide by court orders, including the Supreme Court, demanding the government “facilitate” their return.
Judges who addressed the question prior to Haines ultimately reasoned that TdA was not a “government” or “foreign nation” and could not be said to have engaged in an “invasion” or “predatory incursion,” both of which are likely reserved for some form of military action.
Haines, whose order lifted a temporary restraining order she issued last month barring the federal government from removing migrants held in the Western District of Pennsylvania out of the country under the AEA, disagreed with her colleagues’ interpretations of the statute and its requirements.
In her opinion, Haines relies heavily on the fact that Secretary of State Marco Rubio in February deemed TdA a “foreign terrorist organization” (FTO).
“[T]he Proclamation and the Declarations that Respondents have submitted to this Court indicate that there is a factual basis for President Trump’s conclusions in the Proclamation,” Haines wrote. “Most of all, the Proclamation references the fact that the Secretary of State has designated TdA as an FTO pursuant to [Title 8 of the United States Code], a designation that heavily supports the conclusions within the Proclamation that TdA is a cohesive group united by a common goal of causing significant disruption to the public safety of the United States.”
The judge goes on to reason that TdA is engaged in a “predatory incursion” because an FTO is a “cohesive group of individuals united by a common goal of causing significant disruption to the common safety of the public,” likening the gang to military detachments and “pirates” that existed at the time the statute was enacted by quoting an 1832 Supreme Court decision.
“The Court calls the reader’s attention to the fact that ‘incursions’ was used here in reference to both pirates and robbers,” Haines wrote in reference to the quote. “In reading this quotation, the Court cannot help but ask: Is a Foreign Terrorist Organization like TdA not the modern equivalent of a pirate or robber?”
However, Haines rejected the Trump administration’s assertion that notifying detainees that they were being removed under the AEA with only 24 hours’ notice was sufficient. She ordered that detainees be given at least 21 days to challenge their designation under the statute, adding that such notification must be provided in a language the detainee can understand.
