Archives for May 2025

On April 30, U.S. District Judge Fernando Rodriguez issued a 36-page opinion permanently barring the Trump administration from invoking the Alien Enemies Act (AEA) to deport Venezuelans it has deemed to be criminals from the Southern District of Texas, finding that the White House’s use of the statute was illegal.^[1]

Judge Rodriguez, who Donald Trump appointed during his first term, also issued an order allowing migrants targeted by the AEA in South Texas to proceed with a class action against the government.

Judge Rodriguez clarified at the outset that the lawsuit concerns whether the President can deploy the AEA to detain and remove Venezuelan aliens who are members of the Tren de Aragua (TdA), which on March 15, 2025, President Trump declared a “designated Foreign Terrorist Organization.” The opinion states that the historical record clearly indicates that the President’s invocation of the AEA through the Proclamation surpasses the  statute’s scope and does not comport with the plain, ordinary meaning of the statute’s provisions. Hence, the Court concluded that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation to detain the three petitioners, who were three Venezuelan citizens currently detained at the El Valle Detention Center in Raymondville, Texas.

The order reviews the AEA and its invocation during three wars: the War of 1812, World War I, and World War II.  The order observes that the AEA confers broad powers to the President, who may invoke the statute when a “declared war” exists between the U.S. and a “foreign nation or government” or when “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” [2] Under either condition, the President must “make public proclamation of the event” before exercising his authority under the statute.[3]

The opinion observes that in July 2024, the Treasury Department placed TdA on its sanctions list as a significant transnational criminal organization.[4]

The opinion reviews the Proclamation of March 15, 2025, invoking the AEA and proclaiming:

“I find and declare that TdA is perpetrating, attempting, and threatening an  invasion  or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”

Judge Rodriguez granted a Temporary Restraining Order and converted the Motion for a Preliminary Injunction into a motion for summary judgment.

The opinion rejects the Trump administration’s arguments that the “President’s authority and discretion under the AEA is not a proper subject for judicial scrutiny.”  The order also rejects the administration’s argument that whether the AEA’s preconditions are met is a political question committed to the President’s discretion.

The opinion finds that the factual statements in the President’s Proclamation do not meet the requirements of the AEA. The Proclamation does not refer to or suggest that a threat exists of “an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation.” Hence, the terms of the Proclamation cannot be viewed as describing conduct that falls within the meaning of “invasion” for purposes of the AEA.[5]

With respect to “predatory incursion,” the opinion observes the Proclamation does not set forth “an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives.”  In addition, the Proclaim does not say that the TdA has engaged in an organized armed attack, or that the Venezuelan government has threatened or tried such an attack through TdA members. Hence, the Proclamation does not meet the requirement of describing a “predatory incursion” as that concept was applied at the time of the AEA’s enactment.[6]

As a result of the Court’s findings, the opinion concludes that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and hence is unlawful.

Analysis

The decision applies only to Venezuelan immigrants in the Southern District of Texas, but it could affect other cases involving the administration’s use of the AEA.

The Department of Justice (DOJ) has consistently argued that judges have no authority to intrude on the president’s decisions in matters of foreign policy. The order disagrees.[7]

The order did acknowledge that the court has no authority to examine the truth of the Proclamation’s underlying statements, such as whether the Venezuelan government controls the TdA,[8]a claim with which U.S. intelligence agencies disagree.[9]

The Administration will undoubtedly appeal the decision and will find the dicta that the court does not have the authority to question the facts underlying the determination useful in arguing the case on appeal.[10]

An article by the author in the June issue of the IELR will discuss the decision and its implications in more depth.

[1]  J.A.V. v. Trump, U.S. Dist. Ct., S.D. Texas, Brownsville Div., C.A. No. 1:25-CV-072 Order and Opinion, April 30, 2025.

[2]  50 U.S.C. § 21.

[3]  Id.

[4]  See Notice of OFAC Sanctions Actions, 89 Fed. Reg. 57994-01 (referencing President Obama’s Executive Order 13581 of July 24, 2011).

[5]  Order and Opinion, at 33-34.

[6]  Id. at 34.

[7]  Alan Feuer, Mattathias Schwartz and Charlie Savage, Federal Judge Strikes Down Trump’s Use of Alien Enemies Act to Deport Venezuelans, N.Y. Times, May 1, 2025.

[8]  Order and Opinion, at 18.

[9]  Feuer,  Schwartz and  Savage, supra.

[10] See  Geoge Fishman, Federal Judge Launches a Predatory Incursion Against the Alien Enemies Act, Center for Immigration Studies, May 6, 2025.