Lawyers for some of the Venezuelan immigrants deported last weekend under a rarely invoked wartime statute are pushing back against the Trump administration’s contention that they are members of a violent criminal street gang.
In court papers filed late Wednesday night, the lawyers said that at least five of the immigrants who were flown without due process to El Salvador on Saturday were apprehended in part because they had tattoos that federal immigration agents claimed indicated ties to the gang, Tren de Aragua.
But the lawyers said that one of the men got his tattoo — of a crown sitting atop a soccer ball — because it resembled the logo of his favorite soccer team, Real Madrid. Another got a similar crown tattoo, the lawyers said, to honor the death of his grandmother.
A third immigrant was identified as being a member of the gang because of a tattoo on his left hand of a rose with paper money as its petals. But according to a sworn declaration filed by the man’s sister, the tattoo had no connection to a gang.
“He had that tattoo done in Aug. 2024 in Arlington, Tex., because he thought it looked cool,” the sister wrote.
The question of whether the deported Venezuelans actually have ties to Tren de Aragua, which the Trump administration recently designated as a foreign terrorist organization, could be raised at a hearing set for Friday in Federal District Court in Washington.
The hearing is expected to feature a debate between the Justice Department and lawyers for the immigrants over whether Judge James E. Boasberg, who is handling the case, was right when he issued an order on Saturday temporarily pausing deportations of Tren de Aragua members under the wartime law, which is known as the Alien Enemies Act.
Almost from the moment Judge Boasberg’s provisional decision was entered, the White House and the Justice Department — echoed by a chorus of Mr. Trump’s allies online — have accused the judge of overstepping his authority by effectively commandeering the president’s prerogative to conduct foreign affairs.
But the question that Judge Boasberg is actually considering is whether Mr. Trump himself overstepped his authority by failing to comply with several specific provisions laid out in the Alien Enemies Act. The statute, which was passed in 1798, gives the government wide latitude during an invasion or a time of declared war to round up and summarily remove any subjects of a “hostile nation” over the age of 14 as “alien enemies.”
The administration has repeatedly claimed that those accused of membership in Tren de Aragua should be considered subjects of a hostile nation because they are closely aligned with the Venezuelan government and the leadership of the country’s president, Nicolás Maduro. The White House has also insisted that the arrival to the United States of dozens of members of the gang constitutes an invasion.
But lawyers for the deported Venezuelans argue that their clients are actually not gang members at all and should have the opportunity to prove it. The lawyers also maintain that while Tren de Aragua may be a dangerous criminal organization, it is not a nation state. Even if the group’s members have come to the United States en masse, they say, that does not fit the traditional definition of an invasion.
Moreover, they point out that the Alien Enemies Act has been invoked only three times in American history, all of them during times of clear-cut war: once during the War of 1812 and then again during World War I and World War II.
The conflict over whether Mr. Trump has properly invoked the Alien Enemies Act is the central — but not the only — dispute in the case, which has emerged in recent days as a flashpoint over the administration’s attempts to use extraordinary wartime powers to pursue its broader immigration agenda.
Judge Boasberg has also been trying for days to get the Justice Department to provide him with detailed data on two of the deportation flights to El Salvador in an effort to determine whether administration officials sent the planes on their way in violation of his original order stopping them.
The judge has asked the government to tell him — under seal if necessary — what time the planes took off from U.S. soil and from where, what time they left U.S. airspace and what time they landed. Much of this information appears to already be available in public flight databases, but the judge is seeking an official record from the administration.
He gave the Justice Department until noon on Thursday to file court papers with the flight data. But by Thursday afternoon, there was no public filing on the docket in the case, suggesting that department lawyers have submitted the papers to the judge under seal and also perhaps ex parte, meaning to him alone.
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