Summary:

An appellate judge told prosecutors Monday that “Nazis got better treatment under the Alien Enemy Act” than the Venezuelan nationals the Trump administration recently removed from the U.S. to a prison in El Salvador.

Judge Patricia Millett drew the stark comparison during a hearing at the Court of Appeals for the D.C. Circuit, where lawyers representing the Trump administration worked to lift a lower court’s temporary ban on the deportation of immigrants under a proclamation President Donald Trump recently issued that invoked the Alien Enemies Act.

The centuries-old law has only been used four times in American history and gives the president broad powers to deport non-U.S. citizens from “enemy” nations, or those deemed to be committing an invasion or incursion against the U.S. The law is a powerful dragnet since it allows a targeted person to be deported without a single hearing before a judge or in immigration court.

“Nazis got better treatment under the Alien Enemy Act than what has happened here… they had hearing boards before people were removed,” Millett said. “Here, there’s nothing about hearing boards or regulations and nothing was adopted by agency officials who were administering this. People weren’t given notice [and] weren’t told where they were going.”

“We certainly dispute that analogy,” federal prosecutor Drew Ensign replied.

Trump’s proclamation on March 15 declared the Venezuelan gang Tren De Aragua to be an “invading force.” What followed was the swift removal of at least 200 people from the U.S. whom the administration flagged as members of the gang. Justice Department lawyers conceded in court that the exact number of people the government has identified as members of the gang is unclear.

American Civil Liberties Union attorney Lee Gelernt, who is representing the plaintiffs, said “many, if not all” of those removed have no ties to Tren De Aragua. In some instances, tattoos on those removed have been misinterpreted by the government as symbols of gang membership.