Advocates for men targeted for deportation under President Donald Trump’s invocation of wartime powers against a Venezuelan gang are trying to move their legal fight to Manhattan, even though the Supreme Court expected it would play out in Texas.
The unexpected development may mean that some of the litigation over Trump’s deportation bid will occur before a Clinton-appointed judge and an ideologically mixed federal appeals court in New York, rather than under the purview of the most conservative appeals court in the country.
Lawyers for Venezuelan nationals living in the United States initially filed a class-action lawsuit in Washington, D.C. and obtained a broad court order blocking deportations under the two-century-old Alien Enemies Act. But the Supreme Court lifted that order Monday and, in doing so, likely shut down the Washington-based case.
Now the question is how — and where — further legal challenges will proceed.
The Supreme Court, voting 5-4, said lawsuits seeking to block the deportations had to be filed in the places where the detainees are jailed. The administration gathered hundreds of would-be deportees in detention centers in south Texas last month, prior to a series of planned deportation flights, so the high court assumed federal courts there would be the correct venue.
“The detainees are confined in Texas, so venue is improper in the District of Columbia,” the court’s majority wrote in its unsigned order. “We hold that venue lies in the district of confinement.”
But lawyers for two detainees sued Tuesday in federal court in Manhattan. The lawyers said their clients had been transferred from Texas to a county detention center in Goshen, New York, last week. The case was assigned to U.S. District Judge Alvin Hellerstein, who played a brief role in one of Trump’s criminal cases.
The Clinton-appointed judge set an initial hearing for Wednesday at 10 a.m. and will consider an emergency request from the American Civil Liberties Union to bar the government from transporting the two men out of the New York area while the litigation is in progress.
Many of the other people targeted by Trump as “alien enemies” are still detained in Texas. Under the Supreme Court’s Monday ruling, they will likely need to file their own cases there.
And about 130 other Venezuelans have already been deported to a notorious prison in El Salvador. Their lawyers, too, could try to file lawsuits seeking their return to the United States, though their route to do so — and their chance of success — is uncertain.
The Trump administration has claimed that the deportees are members of Tren de Aragua, a violent gang that the administration has designated as a terrorist organization. Lawyers for the men targeted say the administration has produced little evidence to back up those claims and, in fact, has deported some individuals who are certainly not gang members.
Texas federal courts are generally considered more conservative than those in New York and are likely to be less receptive to litigation brought by the would-be deportees. In addition, appeals from those Texas courts go to the New Orleans-based 5th Circuit Court of Appeals, which is dominated by highly conservative judges.
Most of the men jailed under Trump’s invocation of the Alien Enemies Act are detained in detention centers that are under the jurisdiction of the federal courthouse in Brownsville, Texas. Two federal trial judges split the stream of cases filed there. One is a Trump appointee and one is an Obama appointee.
The much larger bench of trial judges who sit in the federal courthouse in Manhattan is more liberal-leaning: About three-quarters of those judges are Democratic appointees. Appeals of their rulings go to the Manhattan-based 2nd Circuit, which is roughly evenly divided between Democratic and Republican appointees.
The new lawsuit Tuesday by the two detainees in New York — who filed the case using pseudonyms — seeks class-action status on behalf of others nationwide who are or may be subject to Trump’s alien-enemies proclamation. But it’s far from clear whether courts will allow a class-action case in this context to proceed at all, let alone allow it to encompass people being detained outside New York.
Justice Sonia Sotomayor, who wrote a dissent from the high court’s ruling Monday, indicated repeatedly that the court’s majority was slamming the door on a class action, which she suggested would be more efficient than “individual habeas petitions filed in district courts across the country.”
The order from the majority doesn’t explicitly rule out a national class action, but the language about pursuing cases only in the “district of confinement” seemed to throw cold water on that idea.