Judicial Wishful Thinking
Supreme Court’s Alien Enemies Act order ignores lack of lawyers near ICE prisons
People detained under the Alien Enemies Act must individually challenge the government’s actions in a federal court near wherever they are being held, the Supreme Court announced this week. For many, the Court’s promise of judicial oversight is a fantasy that collides with the reality that ICE’s largest immigration prisons are in parts of the country with few legal resources.
All nine justices agreed that the detained individuals are entitled to challenge President Trump’s reliance on the Alien Enemies Act in a federal court. They disagreed about the proper location. In a five-paragraph, unsigned order, five of the Supreme Court’s rightwing justices told a group of Venezuelan citizens challenging President Trump’s use of the Alien Enemies Act that they incorrectly sued in a Washington, D.C. federal court. They were legally required to lodge their complaint in South Texas where they are currently held at the El Valle Detention Facility.
Anyone detained for potential removal under the Alien Enemies Act is “entitled to notice and an opportunity to be heard,” the five-justice majority wrote. To satisfy this basic feature of due process, ICE must notify detained individuals of its reliance on the rarely used eighteenth century law “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
Though the Court’s order in Trump v. J.G.G. focuses on five people only, it leaves open the possibility that anyone targeted under the Alien Enemies Act can challenge the president’s authority to invoke the law under historically unprecedented circumstances. Until the Trump administration, federal officials had only ever turned to this law on three occasions – during the War of 1812 and each world war – always to detain and remove citizens of a country against which the United States was at war.
Trump has claimed that Tren de Aragua, a gang that originated in Venezuela, is invading the United States. He instructed ICE to target citizens of Venezuela who are at least fourteen years old. Any individual targeted can also contest whether they fit the description of the targeted group, perhaps by pointing out that they are not a member of Tren de Aragua.
On a practical level, the majority’s pathway to the courthouse is likely to be stymied by the lack of available attorneys near ICE’s largest prisons. Located in Raymondville, Texas, a town of approximately 10,000 people, the El Valle Detention Facility held 858 people at the end of March. Earlier that month, ICE briefly housed about 250 people there before flying them to El Salvador.
There are not enough lawyers to represent even a fraction of people sent to El Valle, but it’s not the only ICE facility in the area. Up the road in Los Fresnos, population 8,400, there were another 1,012 people held at the Port Isabel Service Processing Center. Further north by two hours in Pearsall, population 8,900, the South Texas ICE Processing Center housed another 1,661.
Texas isn’t unique in its grouping of large immigration prisons. There are similar prison clusters in remote parts of Arizona and Louisiana as well.
Like small towns everywhere, there are few lawyers in these regions. In Texas, three out of four people who are detained while their cases linger in the immigration court system are unrepresented. That’s true of 64 percent of people held in Arizona and 70 percent of people detained in Louisiana.
Representation rates in immigration court are only somewhat relevant because bringing a habeas petition in federal court is different in form and substance from trying to fend off removal. Many immigration lawyers have no experience or interest suing the federal government in federal court. They are not familiar with the substantive or procedural law that applies and might not even be admitted to practice in the nearby federal court. Local non-profit legal services providers are likewise limited in their capacity and expertise.
Advocates from other parts of the country might be able to step in on occasion. That happened earlier this month with a person detained in South Texas and accused of Tren de Aragua membership. For all their commitment, sympathetic advocates from big cities are unlikely to be able to provide direct representation to hundreds of people detained in far off locations on an ongoing basis.
Compounding the obstacle presented by the limited number of lawyers is the fact that people targeted under the Alien Enemies Act are not entitled to an appointed lawyer because they are not being prosecuted for a crime. Anyone who wants to block the federal government’s claim that they are part of a foreign invasion must hire a lawyer or find one to work for free. Few lawyers anywhere have the capacity for more than a limited amount of pro bono work.
Against this backdrop, the Supreme Court’s instruction to haul ICE into court rings of judicial wishful thinking.
Yesterday, a federal judge in Brownsville, Texas, near Raymondville, issued a temporary restraining order blocking ICE from removing three Venezuelan citizens, including the person identified in court records only as J.G.G., under the Alien Enemies Act. All three are currently held at the El Valle Detention Center. The TRO also stops ICE from removing anyone else who is currently held at El Valle. The judge's order expires at 5:00 pm Central on April 23.