WASHINGTON — An appeals panel Friday seemed inclined to agree that more than 100 Venezuelan men the Trump administration sent to a brutal prison in El Salvador are entitled to due process hearings to challenge their removal, which was made under an archaic 18th-century wartime law.
Arguing on behalf of the class of men who were removed under the Alien Enemies Act of 1798, Lee Gelernt of the American Civil Liberties Union told the three-judge panel that the men, who were accused of being suspected members of the Venezuelan Tren de Aragua gang, were entitled to hearings to challenge those accusations.
But instead, Gelernt said, the men were denied their due process rights and spent four months in a brutal Salvadoran prison.
The men were eventually returned to Venezuela in a prisoner swap exchange, but many who had pending asylum cases want to challenge their removal under the Alien Enemies Act and continue their immigration proceedings.
He said the Trump administration is asking for the ability to “essentially whisk people away to a foreign prison, give them no opportunity to contest the removal, even whether they’re part of this gang that this proclamation applies to… and then say, ‘Because we got them out of the country into a foreign prison, that’s the end of the matter.’”
DOJ argues against due process
The Trump administration argued before the U.S. Court of Appeals for the District of Columbia Circuit that the Venezuelan men are not entitled to due process hearings.
Department of Justice attorney Tiberius Davis said that the United States had no custody over the 137 Venezuelan men removed to the Salvadoran mega-prison known as CECOT, and therefore the immigrants are not entitled to hearings in the U.S.
He added that it would be impractical for the Trump administration to conduct more than 100 online hearings abroad.
“It’s a real problem with foreign sovereignty to hold hearings, and take evidentiary hearings, in foreign countries, even at our own embassies,” Davis said. “That can be a real problem. So we would have to engage in diplomacy and foreign affairs in order to even do that much.”
March 2025 origins
The case began when President Donald Trump invoked the Alien Enemies Act in March 2025 to rapidly deport Venezuelan immigrants.
U.S. District Judge James Boasberg issued the Trump administration an order to return several deportation planes to the U.S., but instead they landed at CECOT. The U.S. paid El Salvador up to $6 million to detain the men.
On Monday, there is a separate hearing where Boasberg will hear arguments as to whether several Trump officials should be held in contempt for violating his order by not returning the planes carrying men removed under the Alien Enemies Act, including possible criminal contempt charges against Attorney General Todd Blanche and an appellate judge, Emil Bove.
Judge expresses doubt
Circuit Judge Harry T. Edwards seemed skeptical of the Trump administration’s arguments that the U.S. had no custody over the men while at CECOT. Edwards was appointed by former President Jimmy Carter.
“It seems pretty clear … that the U.S. was fully engaged and kept itself in a position of control throughout,” Edwards said.
Davis disagreed and said that diplomacy was involved and pointed to how Secretary of State Marco Rubio had to engage with El Salvador’s president to bring back one of the men sent to CECOT, Salvadoran national Kilmar Abrego Garcia, who was unlawfully removed to his home country.
“I think the district court sort of swept away those foreign affairs concerns,” Davis said.
Gelernt said it was harder to facilitate the return of Abrego Garcia because he was a citizen of El Salvador.
“He’s not part of our class. El Salvador clearly had an interest in their own nationals,” Gelernt said. “They have no interest in these Venezuelans, other than collecting a paycheck.”
