In Alien Enemies Case, Many With Open Asylum Claims Allegedly Removed

In a federal case in Maryland, the government recently admitted that it mistakenly removed a man to El Salvador despite protective status. The “administrative error” may reverberate in the Alien Enemies Act case. There, plaintiffs have alleged that many Venezuelans with open asylum cases were also wrongfully removed to El Salvador’s dreaded Centro por Confinamiento del Terrorismo (CECOT).

On March 15, five detained Venezuelan aliens filed a putative class action seeking to prevent their summary removal under a proclamation by President Trump invoking the Alien Enemies Act of 1789. The Trump administration alleges that the men are members of a criminal gang called Tren de Aragua, and further theorizes that the gang is a “foreign nation” or “government” engaging in an “invasion” or “predatory incursion” within the meaning of the law. U.S. District Judge James Boasberg issued oral and written temporary restraining orders that day. Nevertheless, the Trump administration sent three planeloads of Venezuelans to El Salvador—now the subject of ongoing proceedings as to whether the government defied Boasberg’s orders.

In connection with a motion for a preliminary injunction filed on March 28, plaintiffs’ lawyers filed multiple declarations alleging that individuals with no connection to Tren de Aragua—often with open asylum cases—were wrongfully removed on March 15 to El Salvador’s notorious prison for terrorists.

Andry Hernandez Romero, a gay professional makeup artist, was one of them, according to his lawyer’s declaration:

4. [Andry Romero] worked for a government sponsored news channel as a professional makeup artist .... He faced constant discrimination because of his sexual orientation. He and other station employees were forced to promote pro-Maduro content in their social media and to vote in favor of issues supported by that government. He refused and the producers at his government-sponsored station attacked him and threatened to further harm him if he did not comply. Around this same time, he began to be followed by “colectivos,” armed groups operating at the behest of the government, and was threatened by them to support the Maduro government.
5. In response, Andry quit the television station and went into hiding, leaving Venezuela in May 2024.
6. On August 29, 2024, Andry presented at the San Ysidro Port of Entry after making an appointment with the CBP One app. He was questioned about his tattoos, transferred to ICE custody, and sent to Otay Mesa Detention Center.

Like other aliens described in the plaintiffs’ filings, Romero is alleged to have been arrested because of his tattoos. But two criminologists and a third expert on Latin American gangs all aver, in other declarations filed in connection with the motion, that Tren de Aragua has no “graphic symbol” or distinguishing tattoos that identify its members.

The immigration attorney for Jerce Reyes Barrios also filed a declaration. Barrios is a professional soccer player, according to his lawyer.

2. In February and March 2024, Mr. Reyes Barrios marched in two demonstrations in Venezuela protesting the authoritarian rule of Maduro. At the second demonstration, he was detained and taken to a clandestine building where he was tortured (electric shocks, suffocation) along with other demonstrators.
3. Shortly after his release, he fled Venezuela for the United States. He registered with CBP One in Mexico, then presented himself to CBP officials on the day of his appointment. He was taken into custody and detained at Otay Mesa Detention Facility in September 2024.
4. We applied for asylum, withholding of removal, and CAT [Convention Against Torture] protection in December 2024. His final individual hearing is set for April 17, 2025.
5. On March 15, 2025, Mr. Reyes Barrios was deported to El Salvador with no notice to counsel or family. ...
6. Mr. Reyes Barrios was/is a professional soccer player in Venezuela. He has never been arrested or charged with a crime. He has a steady employment record as a soccer player as well as a soccer coach for children and youth.

Reyes Barrios, too, was allegedly arrested based on his tattoos, including one for his favorite soccer team, Real Madrid, according to his attorney.

Luis Marcano Silva was also removed. According to a declaration from his mother, he had experienced “threats of death and physical violence by political opponents” in Venezuela. When he entered the U.S. in November 2023, he and his family—his partner and two daughters— “presented themselves to immigration officials” and were released on their own recognizance. They applied for asylum in August 2024. He was told to check in with authorities in February, but an immigration practitioner assured him “that nothing would happen … as he ha[d] a pending asylum application.” At the check-in, however, he was accused of being a Tren de Aragua member and detained. He still had a hearing scheduled for March 31 at the time he was summarily flown to CECOT on March 15. His mother asserts that he has no criminal record in any country and believes he was deported because of his tattoos.

Similarly, the plaintiffs’ lawyers allege that Neri Alvarado Borges, also now in El Salvador’s CECOT prison, was deported because of his tattoos. One of those, they assert, is an autism awareness ribbon with the name of Borges’s autistic brother on it. (Plaintiffs have also submitted an exhibit entitled “Alien Enemy Validation Guide.” They say it is a tool, based on a point system, that the U.S. Immigration and Customs Enforcement agents use to determine whether an alien is a member of Tren de Aragua. Tattoos “denoting membership/loyalty to TDA” are worth four points. In some circumstances, those accumulating more than eight points “are validated” as members of the group, while those accumulating six points “may be” validated, according to the document.)

Finally, earlier in the litigation, a Venezuelan woman submitted a declaration stating that she, too, had had an open asylum case when she was placed on a plane and sent to El Salvador that day. She was among about eight women on her plane whom El Salvador refused to accept, she explains, and who were, therefore, sent back to the United States. “Several other people on the plane told me they were in immigration proceedings and awaiting court hearings in immigration court,” she wrote.

It’s quite possible that the government can rebut most or even all of these claims. But that’s what individual hearings are for. That’s why, as Judge Patricia Millett observed in oral argument over whether to stay Judge Boasberg’s temporary restraining order, even German aliens during World War II received individual hearings before they could be removed under the act. But individual hearings are precisely what the Trump administration dispensed with in the cases of at least 137 aliens who were accused of membership in Tren de Aragua and summarily removed that day, according to a number publicly provided by Press Secretary Karoline Leavitt.

That’s what prompted Judge Millett to observe during oral argument: “Nazis got better treatment under the Alien Enemies Act.”