The American Civil Liberties Union said in a court filing that Immigration Customs Enforcement officials are using a point-based system to ascertain if illegal migrants belong to the Venezuelan gang Tren de Aragua, a determination that would qualify them for expedited removal without a hearing, ABC News first reported Monday.
In its filing on Friday requesting a preliminary injunction against the Trump administration from deporting suspected gang members under the 1798 Alien Enemies Act, the ACLU included a checklist purportedly used by ICE titled “Alien Enemy Validation Guide,” with six categories, within which are subcategories with points assigned to them.
If an illegal migrant scores 8 points or higher, another ICE form advises agents to “proceed with issuing Form AEA-21B, titled ‘Notice and Warrant of Apprehension and Removal under the Alien Enemies Act,'” according to the report.
ICE officers can also use their discretion on suspected TdA members who score less than an 8, according to the report, “reviewing the totality of the facts” to make a determination. Suspects who score 5 points or less wouldn’t be subject to deportation under the Alien Enemies Act but should be removed under other federal deportation guidelines, according to ABC News.
The Trump administration has deported hundreds of determined TdA members to El Salvador. However, U.S. District Judge James Boasberg this month issued a temporary injunction against further removals under the AEA.
ICE’s checklist categories include: Criminal Conduct and Information; Self-Admission; Judicial Outcomes and Official Documents; Documents and Communications; Symbolism; and Association, according to the ACLU filing.
Self-identifying as a member of TdA (under self-admission) or having been convicted of breaking laws related to activity related to TdA (judicial outcomes) would render 10 points, more than enough to meet the threshold of removal under the AEA. Conducting phone calls about the business of TdA (documents and communications) would also be worth 10 points, according to the ACLU’s filing.
White House press secretary Karoline Leavitt countered the ACLU, telling reporters on Monday, “Have you talked to the agents who have been putting their lives on the line to detain these foreign terrorists who have been terrorizing our communities? … There is a litany of criteria that they use to ensure that these individuals qualify as foreign terrorists and to ensure that they qualify for deportation.”
In a statement to Newsweek, the ACLU maintained that the Alien Enemies Act is a “wartime statute.”
“As a threshold matter, the Alien Enemies Act cannot be used during peacetime against a gang,” it said. “If the government believes these individuals are in the country illegally, they can seek to deport them under the immigration laws.”
A hearing is set for Wednesday for the Trump administration to challenge Boasberg’s ruling. While ICE can continue to detain TdA suspects, it can’t deport under the Alien Enemies Act, pending the hearing outcome.
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