Jessica Rios
Associate Editor
Loyola University Chicago School of Law, JD 2026
Andry José Hernández Romero was detained for suspected involvement with a notorious Venezuelan crime organization. The evidence? Two crown tattoos atop the words “Mom” and “Dad” on his wrists. A gay makeup artist, Romero fled his home country of Venezuela to escape persecution for his sexuality and political beliefs. Romero is only one of many non-citizens who, despite being lawfully present in the U.S., face unprecedented risk of deportation due to little more than superficial characteristics under Trump’s aggressive immigration tactics.
What is the Alien Enemies Act?
The Alien Enemies Act of 1798 is a wartime law that authorizes the president to detain or deport natives and citizens of an enemy nation. Originally intended to prevent foreign espionage and sabotage in wartime, there are only three instances where a president invoked the Act. The Act is most infamous for being used to detain Japanese Americans during World War II. The Trump administration has invoked the Alien Enemies Act of 1798 to further mass deportations. Trump’s directive accuses the Venezuelan Tren de Aragua gang of engaging in “mass illegal migration” and “perpetrating, attempting, and threatening an invasion” against the U.S. According to the proclamation, Venezuelan citizens as young as 14 may be deemed members of Tren de Aragua and thus deported.
Rolling back detention standards
The Trump administration has lowered the bar for removal of migrants who officials suspect of belonging to Tren de Aragua. According to court documents submitted on behalf of detained Venezuelan migrants, immigration officials have relied on a guide titled “Alien Enemy Validation Guide” to determine whether the individual belongs to Tren de Aragua. The guide reportedly provides a series of criteria such as being “dressed in high-end urban street wear” such as basketball jerseys from the Chicago Bulls, common tattoos, and social media posts showing symbols that officials claim are linked to Tren de Aragua to justify deportations.
In a similar vein, the Immigration and Naturalization Act of 1952 barred immigrants to the United States who advocated “the economic, international, and governmental doctrines of world communism.” Specifically, the Act states, “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”
In a notice to appear document, Secretary of State Marco Rubio determined that Khalil’s presence or activities in the U.S. “would have serious adverse foreign policy consequences for the United States.” Much like the rhetoric used to justify its use, the Alien Enemies Act is outdated, xenophobic, and dangerous. Invoking Alien Enemies Act is little more than an unlawful means of evading domestic laws in peacetime.
Efforts to move forward
Various legal advocates have challenged the administration’s immigration practices, such as the National Immigrant Justice Center whose federal complaint calls for greater transparency in ICE operations. The complaint alleges that immigration agents violated the rights of 22 people during immigration enforcement arrests, including one U.S. citizen. Similarly, the American Civil Liberties Union, Democracy Forward, and the ACLU of the District of Columbia have taken legal action, arguing that Trump’s invocation of the wartime act during peacetime unlawfully sidesteps the limits of this wartime authority as well as the procedures and protections in immigration law.
Rather than wait for more loss, Congress should establish that such misuse of a wartime act is intolerable, and that the Neighbors Not Enemies Act offers a way forward. Adopting the Neighbors Not Enemies Act would repeal the Alien Enemies Act of 1798 in its entirety. Meaning, the President would no longer be able to apprehend and remove citizens of nations the U.S. has declared war against or nations that have threatened invasion against the U.S. The Alien Enemies Act is not the sole mechanism for the U.S. to defend itself against foreign actors as there are many other laws that serve the same ultimate function. Congress should repeal the archaic Alien Enemies Act by passing the Neighbors Not Enemies Act and demanding the administration withdraw its invocation. Litigation, however, is not enough. Relying on individual lawsuits to correct damage that has already been done leaves thousands of non-citizens and their communities at risk of unnecessary cruelty and deportation.
In Nava v. Dep’t of Homeland Sec., Chicago residents detained in ICE sweeps initiated a class action lawsuit regarding ICE’s arrest procedures, resulting in what is known as the “Nava settlement.” The settlement requires ICE to agents adhere to guidelines when making warrantless arrests during the course of detention and restricts warrantless arrests, including traffic stops, without probable cause for the stop. Under Nava, ICE agents would need probable cause to initiate a traffic stop, a higher standard than is required by traffic officers. It is unclear how much longer under the settlement will stand under the current administration’s anti-immigrant policies. Lowering detention standards is particularly concerning as the Trump administration has made it clear that collateral arrests are a strategic means of immigration enforcement in Chicago and other cities where local law enforcement declines to assist in migration arrests.