Fifth Circuit Panel Enjoins Removals Under Alien Enemies Act, Holding March 2025 Proclamation Does Not Identify an Invasion or Predatory Incursion

The decision

On September 2, 2025, a divided panel of the U.S. Court of Appeals for the Fifth Circuit granted a preliminary injunction blocking the Government from removing the named Petitioners and members of a putative class under the Alien Enemies Act of 1798, as invoked by Proclamation No. 10903. In an opinion by Judge Leslie H. Southwick, the court held that Petitioners are likely to succeed in showing the Act was improperly invoked, because the Proclamation’s findings, which the court accepted as true, do not describe an “invasion” or “predatory incursion” within the meaning of the statute. On the separate question of notice, the opinion states that “two judges agree that the revised notice procedures satisfy due process at least based on the current record.”

The court stated that its injunction “solely applies to the use of the war-related federal statute and does not impede use of any other statutory authority for removing foreign terrorists.” It did not decide whether the Proclamation applies to these particular Petitioners, and the constitutionality of the Act was not challenged.

Background

According to the opinion, the Act, 50 U.S.C. § 21, permits removal of natives, citizens, denizens or subjects of a hostile nation or government when there is a declared war, or when an “invasion or predatory incursion” is perpetrated, attempted or threatened by a foreign nation or government and the President proclaims the event. President Trump invoked the Act in Proclamation No. 10903, dated March 14, 2025, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization.

Two Petitioners, natives of Venezuela held at the Bluebonnet Detention Center in Anson, Texas, filed a habeas petition under 28 U.S.C. § 2241 in the Northern District of Texas on their own behalf and on behalf of all noncitizens in custody in that district subject to the Proclamation. No class has been certified. The district court denied a temporary restraining order, and the Fifth Circuit dismissed an emergency appeal for lack of jurisdiction. The Supreme Court construed Petitioners’ application as a certiorari petition, vacated that decision, granted temporary injunctive relief, and remanded with instructions to address “all the normal preliminary injunction factors” as to the named Petitioners’ claims that the Act does not authorize their removal, and “the issue of what notice is due, as to the putative class’s due process claims against summary removal.”

While the case was pending in the Fifth Circuit, the Government filed an updated notice providing seven days before removal, identifying the court in which a habeas petition may be filed, permitting telephone calls to retain counsel, offering a list of available attorneys on request, and requiring certification that the notice was provided and read in a language the detainee understands.

The court’s reasoning

Scope of review

Relying on Ludecke v. Watkins (1948), as restated in Trump v. J.G.G. (2025), the court concluded that judicial review under the Act extends to “questions of interpretation and constitutionality” and to whether a detainee falls within the category the Proclamation identifies. It read Ludecke to make the President’s findings of fact conclusive: “We accept all Presidential fact-findings about what events have occurred — including who is directing them.” It therefore did not review Petitioners’ challenge to the finding that the Maduro regime directs TdA.

But the court held that interpretation includes applying the statute to the facts found. “Nonetheless, for us to defer to findings of fact, there must be findings of fact.” A proclamation asserting an invasion “without more” would not suffice; the proclamation must state what is believed to be occurring, and the court then determines whether those facts meet the statutory terms.

Invasion and predatory incursion

The court defined an invasion under the Act as “an act of war involving the entry into this country by a military force of or at least directed by another country or nation, with a hostile intent,” declining to require an objective of conquest or long-term control.

For “predatory incursion,” the court surveyed Founding-era usage and compared the Act with the expired Alien Friends Act of 1798, which permitted removal of individually dangerous aliens without hostility by their home government. It concluded that a predatory incursion “described armed forces of some size and cohesion, engaged in something less than an invasion, whose objectives could vary widely, and are directed by a foreign government or nation.”

Taking the Proclamation’s findings one by one, the court held that mass illegal migration “is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States”; that “irregular warfare” was an unexplained label rather than a finding; and that the use of drug trafficking as a weapon, which it accepted as found, is not an invasion or predatory incursion. It summarized: “We accept each of the factual findings in the Proclamation, but not the labels applied to those findings.”

Foreign nation or government

Although unnecessary to its holding, the court addressed whether TdA’s actions could be attributed to a “foreign nation or government,” and, accepting the finding that the Maduro regime directs TdA, stated: “An enemy using forces, whether from the directing government’s own country or from another, that are not part of the country’s regular military does not prevent the use of the AEA.”

Irreparable harm, equities and scope

The court held that the usual presumption that removal can be undone did not apply, citing the Supreme Court’s observation that the Government has represented it cannot secure the return of a person deported in error to a prison in El Salvador. It noted the Government’s assertion on appeal that an alien who files a habeas petition will not be removed until it is adjudicated, but found that the updated notice cited for that assertion “contains no such promise.” On the merged equities and public-interest factors, the court stated that the Government’s arguments about the dangers of detaining TdA members “assumes the very things it must show,” namely that Petitioners are TdA members, which no court has yet determined. Relying on the Supreme Court’s grant of relief to the putative class, the court held it need not assess the likelihood of class certification before extending the injunction to putative class members, while calling this an unsettled area.

Notice

Applying the Mullane v. Central Hanover Bank & Trust Co. standard as restated by the Supreme Court in this litigation, the court found the record thin because the trial-court proceedings occurred when only 24 hours’ notice was given. It looked to 8 U.S.C. § 1229(b)(1), which bars a removal hearing sooner than ten days after service of a notice to appear, as “a good starting point,” and concluded: “we cannot say that the Petitioners have shown a likelihood of success on their procedural due process claim.”

Separate opinions

Judge Irma Carrillo Ramirez concurred in part and dissented in part. She agreed that Petitioners are likely to succeed because the Proclamation “does not identify an invasion or predatory incursion, threatened, or otherwise,” and that the remaining factors favor relief. She agreed the updated notice provides adequate information but dissented as to the seven-day period, citing unrebutted record evidence of obstacles to contacting counsel at the detention facility. Noting the Government conceded at oral argument that it had not responded to this evidence, she wrote: “At least twenty-one days’ notice is required.”

Judge Andrew S. Oldham dissented. He wrote that before 2025, “courts have never second-guessed the President’s invocation of that Act. Not once.” Reading Ludecke with Martin v. Mott and Sterling, he would hold that “we must treat the President’s extraordinarily fact-intensive application of law-to-fact as conclusive.” He would also find no irreparable harm and would hold the equities favor the Government. He wrote that “The majority correctly concludes the Government’s revised notice is constitutionally sufficient.” He also argued that extending relief to the putative class “flatly contradicts the Supreme Court’s remand order.”

Status

The court stated: “We GRANT a preliminary injunction blocking removal, leave in place the Government’s updated notice, and REMAND for further proceedings consistent with this opinion.” The Government “is not enjoined from removing the named Petitioners and putative class members under other lawful authorities.” The district court is directed to take evidence and make findings on a sufficient notice timeframe, and class certification remains open; if certification is denied, the injunction will automatically expire as to putative class members unless an appeal is timely sought and accepted. The decision was widely reported.