The Trump administration’s win at the Supreme Court this week over its deportation program for “alien enemies” came with a significant caveat: The justices ruled that migrants snatched by government security forces must have a chance to contest their deportations to a foreign prison.
But how that will actually work in practice is uncertain, with some lawyers telling NOTUS an effective government challenge may be “virtually impossible.”
On Monday, the nation’s high court allowed the government to immediately resume its forced removals of migrants to El Salvador’s dreaded Terror Confinement Center, but carved out a requirement that immigration agents allow prisoners to challenge their detainment.
“The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs,” the court ruled.
However, few of these detainees are positioned to properly file a habeas corpus petition, a civil lawsuit that disputes a person’s government imprisonment as invalid.
“It would be virtually impossible for an abducted person to properly prepare a habeas petition on their own without a lawyer. Merely notifying someone that they have the right to file is meaningless unless you give that person access to counsel,” said Matthew Stiegler, an appellate lawyer in Philadelphia and former prosecutor at the city’s district attorney’s office.
Prison inmates file these kinds of lawsuits on their own every day across the country, usually with handwritten petitions that promptly get dismissed by judges who deem them unjustified or legally deficient. Petitions filed by defense lawyers often have better shots at success because they’re written in accordance with legal standards and bolstered by properly cited case law.
But court intervention requires the time and ability to file these petitions. And that could be the next phase of the brewing fight between human rights groups and a presidential administration bent on ramping up deportations.
So far, Justice Department lawyers have contended in court that they’ve already given detainees enough time to file these kinds of lawsuits, raising questions about how much the government will actually change its tactics in the wake of the Supreme Court’s guidance.
When that argument was put forward last week by Drew Ensign, the DOJ’s new deputy assistant attorney general overseeing immigration litigation, D.C. Chief Judge James Boasberg suggested that the administration’s first such operation — which was largely carried out on a single day, March 15 — was purposely covert and sped up.
“The courts weren’t open … You wouldn’t typically say the window between 1 a.m. and 7 a.m. on a Saturday is sufficient time to challenge government action, would you?” Boasberg said, pointing out that the government’s rushed strategy was not “anything close to common.”
Judge Patricia A. Millett of the D.C. federal appeals court made the same point when grilling the Department of Justice last week about President Donald Trump’s invocation of the 1798 Alien Enemies Act to rush this operation.
“People weren’t given notice. They weren’t told where they were going. Those people on planes on Saturday had no opportunity to file habeas or any type of action to challenge the removal under the AEA,” Millet said.
Lee Kovarsky, a University of Texas law professor who specializes in habeas corpus issues, said the Supreme Court didn’t define what now constitutes a “reasonable time.” He expects the Trump White House to test the limits.
“I’m sure the administration will ask for something totally unreasonable, but some of these are going to be fact-intensive proceedings. I hope federal courts recognize that and give 60 to 90 days or so. People challenging their state convictions in federal habeas proceedings get a year,” Kovarsky told NOTUS.
One of the changes might come to the legal notice that Immigrations and Customs Enforcement has already created for these operations — a typo-riddled sheet of paper that currently claims, “You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal.”
“It will have to change,” Kovarsky said. “According to the Supreme Court, it needs to be notice that is reasonably calculated to allow detainees to challenge their removal before a federal judge. So the notice will have to be substantive, and it will have to place the detainees in positions to meaningfully litigate.”
The uncertainty has already led to chatter in legal circles about taking proactive steps to prepare habeas actions, especially for those who feel they could be targeted by Trump. When the legal journalist Anna Bower posted on Bluesky that a person’s emergency contact should now be their “emergency habeas filer,” a D.C. lawyer who’s had more than a dozen cases head to the Supreme Court weighed in.
“‘ICE’ in your phone contacts no longer means ‘In Case of Emergency.’ It means ‘call this person if I get detained by ICE,’” he posted.
That kind of preemptive action has spread to college campuses following the Trump administration’s targeting of foreign college students. Nicholas Weaver, a computer science lecturer at the University of California, Davis, said that he has already formally advised his “noncitizen students to have arrangements for rush to file habeas.”
“I believe international students need to have a plan in place to have a lawyer file a habeas petition before this starts to happen,” he told NOTUS.
Another pivotal question at this point is what the next legal challenges look like. Although the Supreme Court’s four women justices all questioned the merits of Trump’s reliance of a wartime measure to target alleged gang members, most of the high court’s conservative majority dodged that examination entirely. Instead, those five justices focused on demanding that any legal challenges stem from the particular court district where a person is held.
However, even that is a challenge, because detained migrants have been transported all over the country to privately-run, for-profit jails — sometimes without being told where they are going.
Lawyers for a person identified in court documents as “J.A.V.,” a Venezuelan man who depends on HIV medication, submitted a declaration from him that recounted the way ICE agents joked that he had “won the lottery” as they loaded him onto a plane bound for El Salvador — but wouldn’t even let him know where it was headed.
A similar declaration from a woman only identified as “S.Z.F.R.” described how ICE agents informed her she was headed for Venezuela, which was a lie. She was taken on a plane that left Texas, briefly stopped in Honduras, then landed in El Salvador — only to have local officials there refuse to take custody of women, forcing U.S. law enforcement to return her stateside.
“I was not told where we were going,” said a 32-year-old Venezuelan man in a court filing.
Kovarsky said there will be pressure to have ICE actually provide more information to detainees and their lawyers, especially if migrants band together and form new class action lawsuits from the jails in Louisiana and Texas.
Either way, the next move in this chess game belongs to the Trump administration, which has gotten the ultimate green light to fire up the Central American bound jet engines.
“Trump’s DOJ has taken outrageous, maximalist positions in case after case. I don’t see any reason yet to expect that to change,” said Stiegler, the lawyer in Philadelphia.
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Jose Pagliery is a reporter at NOTUS.