ICE contradicts DOJ filing at SCOTUS that a pending habeas case blocks AEA removal

DOJ argued the Trump administration would not remove people under the AEA while a habeas petition is pending. An ICE official has stated there are multiple exceptions.

An Immigration and Customs Enforcement official on Wednesday contradicted the Department of Justice’s arguments that are pending before the U.S. Supreme Court regarding when the Trump administration could seek to remove people from America under President Donald Trump’s Alien Enemies Act proclamation.

After Solicitor General John Sauer told the justices that the Trump administration has agreed not to remove people under the AEA while a habeas petition is pending, an ICE official has told another court that is only the “general case” and multiple exceptions apply.

The first relevant filing is the Justice Department’s response at the Supreme Court in the case out of the Northern District of Texas that led to the Supreme Court’s early Saturday morning order blocking removals from that district in Texas temporarily. There, Solicitor General John Sauer asserted on April 19 that “the government has agreed not to remove pursuant the AEA those AEA detainees who do file habeas claims (including the putative class representatives).“

This claim — importantly — immediately preceded Sauer arguing that the Supreme Court “should dissolve its current administrative stay“ in the case and allow proceedings to continue at the district court.

DOJ’s April 19 brief to the Supreme Court

And yet, four days later, in a different AEA habeas case — pending in the Southern District of Texas — an ICE Enforcement and Removal Operations official stated something significantly different.

Carlos D. Cisneros, an assistant field office director for ICE’s Enforcement and Removal Operations, made clear that the Trump administration does not believe it is obligated to do what Sauer told the Supreme Court.

Cisneros, instead, asserted in a declaration filed on April 23 that was unsealed on Thursday that what Sauer stated is only the “general case” with AEA removals.

“Although there may be fact-specific exceptional cases, in a general case, ICE will not remove under the AEA an alien who has filed a habeas petition while that petition is pending,” he stated.

Further diminishing the commitment to non-removal, he continued, “However, ICE may reconsider that position in cases where a TRO has been denied and the habeas proceedings have not concluded within a reasonable time.”

The Supreme Court is yet to rule on the request before it in the Northern District of Texas case to block AEA removals while the case proceeds. At the district court, meanwhile, which initially denied petitioners’ request for a temporary restraining order, U.S. District Judge James Hendrix is currently considering the petitioners’ amended request for class certification and the Justice Department’s response is due by 5 p.m. CT Friday.

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The AEA notice

Update, 9:40 p.m.: Cisneros’s declaration also provided a copy of the notice being given — redacted versions of which had been seen in filings in other cases from various petitioners.

Notice provided under the AEA, as appended to a declaration filed by the Trump administration in an AEA habeas challenge.

Finally, and as has already been noted by the lawyers in another AEA habeas case in the Southern District of New York, Cisneros’s declaration stated that people who the government seeks to remove under Trump’s AEA proclamation are given “no less than 12 hours” — not 24 hours, as has been stated elsewhere — to “indicate or express an intent to file a habeas petition“ before “ICE may proceed with the removal” under the AEA. And, yet again, Cisneros stated that is in “a general case,” while leaving open the possibility of “fact-specific exceptional cases” in which a person could be given less than 12 hours.

As the lawyers explained it in their Thursday filing in the New York case, “The government has previously suggested that notice of designation 24 hours ahead of scheduled removal was sufficient. The declaration states that individuals are given 12 hours’ notice, Cisneros Decl. ¶ 11, and that if they express an intent to file a habeas petition, they are given 24 hours to actually file that petition, id.“