Trump’s use of Enemy Aliens Act against alleged gang members is illegal, El Paso judge rules

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

President Donald Trump acted unlawfully when he issued an executive order applying an 18th century law to alleged Venezuelan gang members to expedite their removal from the United States, an El Paso federal judge ruled Monday.

“Under the (Alien Enemies Act), a president cannot unilaterally define what constitutes an invasion, summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, identify alien enemies subject to detention or removal, and summarily remove them,” Senior Judge David Briones said in a 56-page ruling.

Briones’ ruling was the latest in a string of court rulings against Trump’s March executive order that declared that the Tren de Aragua gang was invading the United States with the support of the Venezuelan government. The administration has used the Enemy Aliens Act to deport alleged Venezuelan gang members to a notorious prison in El Salvador.

The judge, who was appointed by Democratic President Bill Clinton in 1994, said invoking the 1798 law would “only require a militarized effort against, and militarized intrusion into, the territory of the United States with the specific purpose of conquering or obtaining control over territory.” Even assuming that Trump’s analysis of the gang’s activity in the United States is true, “it is clear they do not rise to the level of an ‘invasion’ or ‘predatory incursion’ as defined in the AEA.”

Briones said the government has an interest in border security and combating gangs, but needed to do so through laws passed by Congress.

“Mass illegal migration or criminal activities plainly do not fall within the AEA’s statutory boundaries. Proclamation 10903 does not assert TdA is acting as an army or a military force. Nor is the stated purpose for entry into the United States territory with an intent to gain a territorial foothold on the United States for military purposes. TdA’s alleged actions are simply not ‘against the territory’ of the United States,” the judge wrote in his opinion.

Briones ruled in a case brought by a 33-year-old Venezuelan woman identified in court records by the initials M.A.P.S. He expressed skepticism about the government’s assertion of Enemy Aliens Act powers in a May 29 hearing.

M.A.P.S. entered the United States legally in April 2023 through the Biden administration’s CBP One app, and was later granted temporary protected status.

She was arrested in Ohio in April of this year by Immigration and Customs Enforcement, which accused her of being a member of the Tren de Aragua gang. She has denied gang affiliation, saying the government reached that conclusion based on her tattoos.

Her attorneys with the American Civil Liberties Union say she fled political persecution in Venezuela.

“The court properly recognized that the Alien Enemies Act is a wartime measure that cannot be used during peacetime, much less without due process, to send people to a gulag-type prison in El Salvador," Lee Gelernt, the deputy director of the ACLU’s Immigrants’ Rights Project and the lead attorney in the M.A.P.S. case, said in a statement to El Paso Matters.

The White House and the U.S. Attorney’s Office for the Western District of Texas did not immediately respond to requests for comment from El Paso Matters.

The M.A.P.S. case was certified as a class action by Briones, meaning his ruling protects any alleged Tren de Aragua gang members held in the Western District of Texas, which stretches from El Paso to San Antonio.

Briones said the executive order invoking the Enemy Aliens Act failed to provide due process for those the government sought to expel.

“Let there be no doubt — every person, on United States soil, regardless of their legal status, is entitled to due process of law under the Constitution in deportation proceedings,” Briones wrote. His order requires that the government provide at least 30 days notice of removal for someone targeted under the Alien Enemies Act.

The order prohibits the use of the Enemy Aliens Act to remove M.A.P.S. or any other alleged member of the Tren de Aragua gang held in the Western District of Texas from the United States. Briones also prohibited the government from transferring such people from the Western District to another jurisdiction in the country.

Briones said the order does not limit the government from using immigration laws passed by Congress to detain and remove M.A.P.S. and the people subject to the order. The ruling does not order their release from custody.

This article first appeared on El Paso Matters and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.

---

Big news: 20 more speakers join the TribFest lineup! New additions include Margaret Spellings, former U.S. secretary of education and CEO of the Bipartisan Policy Center; Michael Curry, former presiding bishop and primate of The Episcopal Church; Beto O’Rourke, former U.S. Representative, D-El Paso; Joe Lonsdale, entrepreneur, founder and managing partner at 8VC; and Katie Phang, journalist and trial lawyer.

Get tickets.

TribFest 2025 is presented by JPMorganChase.