So What About Everyone Else at CECOT?

Many have been asking about all the other people unlawfully disappeared to El Salvador, and who is fighting for them.

There has been a lot of focus on Abrego Garcia, but what about the hundreds of men the Trump administration disappeared under the unlawful use of the Alien Enemies Act?

First, you’ll recall that the Supreme Court vacated Judge Boasberg’s Temporary Restraining Orders that he issued back on March 15th - ordering the planes on their way to El Salvador to be turned around. In that order, the Supreme Court also ruled - without briefing or argument - that the only remedy for putative class members was to file habeas petitions in the jurisdictions where they were being detained.

Since then, many habeas petitions have been filed and a few Temporary Restraining Orders have been granted for people multiple jurisdictions including Colorado, the Southern District of Texas, and the Southern District of New York (non-exhaustive list) to prevent additional men from being sent to El Salvador under the Alien Enemies Act Proclamation. But no ruling has been made for bulk of the people already in CECOT, nor have we seen any decision on the meat of the matter: whether the government can use the Alien Enemies Act at all considering we aren’t at war, and that Tren de Aragua is not acting on behalf of the Maduro regime in Venezuela.

After the Supreme Court vacated Judge Boasberg’s initial TROs, he invited the plaintiffs to file any other matters on the docket in this case. He said in a minute order on April 8th: Plaintiffs shall file a Notice by April 16, 2025, indicating whether they believe that they still have a basis to proceed on their Motion for Preliminary Injunction in this Court…

On April 16th, the ACLU filed a notice in response to that minute order and a new motion for a Temporary Restraining Order:

Plaintiffs seek a TRO directing the government to provide 30 days’ notice before seeking to remove any class member under the AEA, and to serve that order on both the class member and undersigned counsel.

Plaintiffs will amend their Complaint to reinstate their habeas claim to seek relief for the class of individuals who were removed to El Salvador under the AEA on March 15, as well as potentially a class of individuals held in U.S. criminal custody.

The plaintiffs said they would file their amended complaint by April 24th.

On April 24th, the ACLU filed it’s one-two-three punch: a motion for a preliminary injunction, a motion to certify a new class, and their amended complaint.

The amended complaint is what folks have been asking about - asking the court to find that the Alien Enemies Act proclamation violates all kinds of laws including:

1. The Administrative Procedures Act

2. Habeas Corpus

3. Cruel and unusual punishment under the 8th amendment

4. Due process violation under the 5th amendment

5. Criminal punishment under the 5th and 6th amendments

6. Punitive detention under the 5th amendment

7. Violations of the Immigration and Nationality Act

8. Violations of the Foreign Affairs Reform and Restructuring Act

9. Violations of the Alien Enemies Act

This is the meat of the complaint - the merits - and it accompanies the motion for a Preliminary Injunction. Since Boasberg denied the TRO (because the Supreme Court would likely vacate it the same way they vacated his other TROs), the ACLU has filed a motion for Preliminary Injunction.

We’ll get to the motion for a Preliminary Injunction in a second, but first let’s check out the motion to certify class first:

The old class in the original TRO’s vacated by SCOTUS was:

“All noncitizens in U.S. custody who are subject to the March 15, 2025, Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua’ and its implementation.”

The new class the ACLU wants Judge Boasberg to certify is as follows:

All noncitizens who were, are, or will be subject to the March 2025 Presidential Proclamation entitled “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua” and/or its implementation.

Petitioners also move the Court to certify the following subclasses:

SUBCLASS 1 (“CECOT Subclass”): All noncitizens in custody at the Terrorism Confinement Center (“CECOT”) in El Salvador who were, are, or will be subject to the March 2025 Presidential Proclamation entitled “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua” and/or its implementation.

SUBCLASS 2 (“Criminal Custody Subclass”): All noncitizens in criminal custody who were, are, or will be subject to the March 2025 Presidential Proclamation entitled “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua” and/or its implementation.

Now for the motion for a Preliminary Injunction - the third part of this filing. The ACLU is asking for the following:

First, for the CECOT subclass, Petitioners move for an Order requiring Respondents to immediately request and take all reasonable steps to facilitate the return of the subclass to the United States from Respondents’ jailer in El Salvador. It further includes enjoining payment of Respondents’ agents and contractors in El Salvador, including any counterparty to an agreement or contract concerning detention at CECOT, to detain the CECOT subclass.

Second, for the Criminal Custody Subclass, Petitioners seek an Order enjoining Respondents from removing any subclass member from the United States under the President’s Proclamation, and requiring Respondents to provide adequate notice of designation to each subclass member and class counsel, and a reasonable opportunity to challenge their designation, detention, and removal under the AEA, consistent with due process. Petitioners also seek an Order providing for immediate, adequate notice of designation to each member of the Criminal Custody Subclass and class counsel, including no less than 30 days to challenge their designation, detention, and removal under the AEA.

So why does ACLU think the injunction could apply to people outside Boasberg’s jurisdiction given the Supreme Court ruling that this has to be done jurisdiction by jurisdiction? Because the ACLU is only asking for folks in CRIMINAL custody in other jurisdictions to be included SUBCLASS 2. They cite Chatman-Bey v. Thornburgh 1988: federal prisoner incarcerated outside the District of Columbia could maintain habeas action to determination of parole eligibility date by respondents in this District. The government has said in court filings that 32 alleged members of Tren de Aragua subject to the Proclamation are in “criminal custody” with detainers on them.

It’s of note that new lead plaintiffs have been added to this complaint including Andry Hernandez Romero - the openly gay stylist and make-up artist, and Frengel Reyes Mota - the man with zero tattoos who’s name they got wrong on the paperwork multiple times.

Andy McCabe and I will be following along with this case closely on the UnJustified podcast. You can catch it every Sunday - free wherever you get your podcasts.

~AG

Here is the motion for a Preliminary Injunction, the Memorandum in Support of the Preliminary Injunction, the Amended Complaint, and the Motion to Certify Class with the Memorandum in Support of that motion.

Jose Cabezas/Reuters