Trump cites old law to achieve new goals

The Trump administration’s most recent effort to follow through on its immigration promises relies on a simple argument: The president should be able to deport illegal aliens with criminal ties who pose a danger to public safety.

But from a legal perspective, criminal justice has little to do with deportation.

“It gets confused because of the way it looks,” Jennifer Koh, associate professor at the Pepperdine Caruso School of Law told WORLD. “You see people in prisons, in jumpsuits, chains. But despite all of that, the law is very clear that deportation is meant to be a civil process.”

If the Trump administration is looking for a blanket legal category that will give it the power to expedite the multistep deportation process, it will have to look for something more than a migrant’s criminal status. Criminal offenses committed by undocumented suspects will more likely leave them behind bars than result in deportation.

On March 15, the Department of Justice argued it had found just such a category, relying on the powers granted to the president under the Alien Enemies Act (AEA) of 1798 to deport a plane full of suspected members of the infamous Tren de Aragua gang. The Alien Enemies Act allows foreign nationals over the age of 14 to be “apprehended, restrained, secured, and removed as alien enemies” during a time of declared war with their country of origin. It’s unclear whether courts will agree that the law applies to the Venezuelan prison gang in question, a dispute that could reach the Supreme Court down the road.

David Brotherton, professor at the John Jay College of Criminal Justice, explained that removing illegal immigrants in batches is not a facet of the regular deportation process, regardless of criminal status. Deportation is a painstaking process that takes money, time, effort, and individual consideration of each suspect’s case.

There are presently 71 immigration courts in the United States—and more cases than they can handle.

“There’s probably over a million people now in the backlog,” Brotherton said. “It can take anywhere from a month to a year before you can process someone out of the country.”

Brotherton explained that some cases move faster than others. An aggravated felony charge, a legal designation, can trigger expedited removal proceedings. In those cases, proceedings can be resolved in as little as one day. But the administration wants to do more, faster.

“They want to make good on their promise. And so, they’ve come up with this legal strategy,” Brotherton said.

In its court filings, the administration argues that members of Tren de Aragua have all the characteristics of an invading force, clearing the path for the president to act as if the country is at war.

Tren de Aragua first started as a prison gang from the Venezuelan state of Aragua but has spread in recent years with a presence in Colombia, Peru, Chile, Ecuador, Bolivia, and Brazil. In the United States, the group is known for its sex trafficking operations.

“There is no question that the purposes of that entry are contrary to both the interests and laws of this country—trafficking in substances and people, committing violent crimes, and conducting business that benefits a foreign government whose interests are antithetical to the United States,” the administration wrote in its court filings last week. “However else the actions of [Tren De Aragua] can be characterized, they clearly constitute a ‘predatory incursion’ into the United States.”

That line of argument makes sense to George Fishman, senior legal fellow at the Center for Immigration Studies.

Fishman worked in the U.S. Department of Homeland Security. While there, he proposed regulations that would have made certain immigrants ineligible for asylum if they might pose a threat to national security.

“The big question is whether the acts of a foreign terrorist organization—an international criminal cartel—can be attributed to a foreign government for purposes of triggering the Alien Enemies Act,” Fishman said. “This is the concept of a mafia state where the government of a particular nation has become so entwined with organized crime that it becomes difficult to differentiate the acts of a foreign government with the acts of the criminal organization.”

Fishman noted the argument’s scope really only extends to cartels. President Donald Trump wouldn’t be able to use it to enact mass deportations of people without organized crime connections.

Even on that limited basis, critics of that strategy argue the president is circumventing due process. That’s especially concerning to Koh, the professor from Pepperdine. She studies the intersection between immigration enforcement and criminal law.

“There is a process that’s allowed. A person can present their evidence, hire a lawyer, right?” she said. Without a trial, Koh noted that it’s up to the administration to decide what clear the bar for deportation with little room for pushback.

“Part of the concern right now is that the government has alleged that all 200-some [deportees] are members of the Tren de Aragua,” she said. “We’re obviously still learning a lot as the news breaks, but it appears, for example, that the government has relied on the existence of tattoos. That doesn’t necessarily make them a member of this gang.”

Tattoos provide strong circumstantial evidence of gang involvement, leaving ex-gang members often desperate to get them removed, even after serving time.

Chris Bendinelli is a Christian who runs a tattoo-removal ministry based in California. He partners with the government to remove markings from gang members who are closing out their sentences, including convicts who are about to get deported. The same markings that tip them off to law enforcement can also be a death sentence in some Latin American prisons.

“They’re like ‘hit it again, I got to get it off, hit it again,’” Bendinelli told WORLD. “They know. They can sit there and say ‘I’m not in the gang anymore,’ but you clearly have tattoos on your face, you know?”

To Mitch Sollenberger, professor of political science at the University of Michigan-Dearborn, using the Alien Enemies Act to go after the gangs—even Tren de Aragua—is a stretch at best. He’s not convinced the United States is at war or that a prison gang has “nationals.”

He thinks Trump has talked about illegal immigration using military language such as “invasion” and “territorial integrity” to build a case for using laws such as the Alien Enemies Act as a basis for deportations.

“The executive orders, particularly the language around treating immigration as an ‘invasion’ putting the country on war-footing, so to speak—I’m thinking they likely came in with some of these tools in mind,” Sollenberger said.

During his first administration, Trump used Title 42—a public health order in response to COVID-19—to justify the Remain in Mexico policy that kept asylum-seekers outside of the United States as officials processed their claims. Other presidents have also relied on little-known or rarely used laws to accomplish their policy agendas.

“We can’t treat Trump as an anomaly here,” Sollenberger said. “Presidential power has been growing [for] over 100 years. You can go all the way back to Teddy Roosevelt who claimed that as long as the Constitution or laws don’t explicitly say a president can’t do something, then the president can do it. That’s fundamentally the issue—it’s about power.”

Trump has said he will respect the decisions of the court in their evaluation of his use of the Alien Enemies Act. For now, U.S. District Judge James Boasberg, an Obama appointee, put a restraining order on the power.

“[The Court] has determined that an immediate order is warranted to maintain the status quo until a hearing can be set,” Boasberg wrote on Saturday.