The Trump administration urged the Supreme Court on May 12 to dissolve a block it issued last month that prevents the government from deporting alleged Venezuelan gang members under the Alien Enemies Act.
The president invoked the Alien Enemies Act of 1798 to authorize the “immediate apprehension, detention, and removal” of members of the group who are Venezuelan citizens 14 years of age or older and who are not U.S. citizens or lawful permanent residents of the United States.
In a class action, one or more plaintiffs sue on behalf of a “class,” or a larger group of people who claim to have suffered the same injury because of a defendant. Federal and state court rules govern whether a class action gets certified and is allowed to proceed. Until a class is certified, the members are referred to as putative, or presumed, members of the class.
Sauer wrote that the Department of Homeland Security “estimates that there are some 176 putative class members.”
“Because this Court’s order categorically prohibited removing those 176 putative class members even under non-[Alien Enemies Act] authorities, the government has been detaining these aliens instead of removing the many putative class members who may be otherwise removable under non-[Alien Enemies Act] authorities.”
These detainees “have proven to be especially dangerous to maintain in prolonged detention. Some 23 putative class members recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm [Immigration and Customs Enforcement] officers,” he wrote.
“Transferring such prisoners to other facilities ... creates ongoing risks of prison recruitment and expansion of Tren de Aragua (TdA) gang activities within the United States.”
Sauer added that “the putative class members are not proper parties and have received adequate notice and opportunity to pursue habeas petitions.”
Habeas corpus, which is Latin for “you should have the body,” refers to the right of individuals to appear in front of a judge to contest their confinement.
Sauer’s filing came after attorneys for the detainees asked the Supreme Court on May 11 to keep the block in place.
The case involves A.A.R.P. and W.M.M., the initials of two of the detained men, who are petitioners in the case before the Supreme Court.
However, the detainees’ individual circumstances are so different that they cannot satisfy the court’s “uniformity-of-relief requirement,” Hendrix wrote.
“Detainees should be able to pursue their own habeas rights through their own arguments and not be swept up in broad challenges that may remain in litigation for a lengthy period. Thus, the Court denies class certification,” the judge wrote.
The detainees argue that the government’s conduct “is unlawful as to all putative class members,” and if this is correct, then the proclamation is unlawful, “but if the [detainees] lose on the merits of that claim, then relief may be appropriate only to some members of the class,” the judge wrote.
In the May 11 filing, the ACLU Foundation attorneys wrote that Hendrix argued an injunction against the proclamation may be “unavailable even in individual cases to prevent removal under the [Alien Enemies Act], because ‘the sole function of habeas corpus is to provide relief from unlawful imprisonment or custody, and it cannot be used for any other purpose,’” referencing a 1979 ruling by the U.S. Court of Appeals for the Fifth Circuit.
The attorneys said that denying class certification forces individual detainees, who are “overwhelmingly unrepresented,” to respond to government actions “on an exceedingly short timeframe,” and to bring “dozens if not hundreds of separate habeas cases, potentially followed by emergency applications to this Court.”
The Supreme Court should maintain its injunction against the proclamation “while this matter proceeds in the lower courts” and either grant a writ of certiorari or “provide guidance on class certification,” the lawyers wrote. They added that “every other lower court to consider the issue has enjoined removals under the [Alien Enemies Act] while judicial review proceeds.”
A writ of certiorari is a court order that allows the justices to move forward with hearing an appeal. When certiorari is granted, the Supreme Court typically holds an oral argument in the case.
