Take the Fifth

Designated for publication

• W.M.M. v. Trump, 25-10534, appeal from N.D. Tex.
  • Southwick, J. (Southwick, Oldham, Ramirez), Ramirez, J., dissenting in part; Oldham, J., dissenting; immigration, due process, Alien Enemies Act, habeas corpus
  • On remand from U.S. Supreme Court’s grant of temporary restraining order halting deportation of petitioners under the Alien Enemies Act, granting preliminary injunction blocking removal of petitioners, leaving in place government’s updated notice of removal, and remanding for further proceedings.
  • Total of 185 pages of majority opinion (48 pp.), opinion dissenting in part (6 pp.), and dissenting opinion (130 pp.).
  • This case returns from the Supreme Court with instructions to decide (1) whether the usual preliminary-injunction factors are met for the petitioners’ habeas claims challenging the President’s March 14, 2025 Proclamation under the Alien Enemies Act (AEA), and (2) whether the Government’s notice of removal satisfies due process. The petitioners—Venezuelan nationals detained as alleged members of the designated foreign terrorist organization Tren de Aragua (TdA)—seek to contest both their designation and the lawfulness of using the AEA, a 1798 statute that applies only during a declared war, an invasion, or a “predatory incursion” by a foreign nation or government.
  • On the scope of judicial review, the court reads Ludecke, Eisentrager, and Jaegeler to mean that while the President’s factual findings under the AEA are not second-guessed, courts retain authority to interpret the statute and to apply that interpretation to the publicly proclaimed facts—e.g., whether there is a “declared war,” an “invasion,” or a “predatory incursion,” and whether the statute’s “foreign nation or government” requirement is met. Related authorities (e.g., Sterling v. Constantin) confirm that even when executive determinations about exigency are conclusive for triggering certain powers, courts still police the lawful bounds of how those powers are used when private rights are at stake.
  • Turning to construction, the court holds that, in the AEA’s original and properly updated sense, “invasion” means an act of war involving the hostile entry of a military force of (or directed by) another nation; “predatory incursion” denotes smaller, organized, armed forays by a foreign power short of full invasion. Drawing on founding-era usage, dictionaries, and historical practice (including Indian wars, privateering, and border raids), the court accepts the Proclamation’s factual assertions but rejects its labels: mass illegal migration, unspecified “irregular warfare,” and drug trafficking as a “weapon” are not modern equivalents of invasion or predatory incursion within the AEA’s meaning. Petitioners are therefore likely to succeed on the merits that the AEA was improperly invoked.
  • As to the “foreign nation or government” element, the Proclamation asserts that the Maduro regime directs TdA’s hostile actions. If the predicate (invasion/incursion) were satisfied, that attribution could meet the AEA’s sovereign-involvement requirement—even though the Proclamation names a terrorist group rather than all Venezuelan nationals. But because the court finds no invasion or predatory incursion, the AEA cannot be used here. The opinion emphasizes that other, potent removal authorities under the Immigration and Nationality Act remain available for TdA members and terrorism-related grounds.
  • On the preliminary-injunction factors, the court finds irreparable harm: unlike the usual Nken presumption, the Government has represented elsewhere that return from removal to El Salvador may be impossible, making later relief ineffective. Balancing the equities and public interest also favors interim relief: there is a strong interest in preventing wrongful removals, and the Government’s assertions about dangerousness presume TdA membership that has not yet been adjudicated for these detainees. Accordingly, the court grants a preliminary injunction barring removals under the AEA only, leaving other lawful removal avenues untouched. Consistent with the Supreme Court’s guidance, relief extends to both the named petitioners and putative class members without requiring a forecast on class certification at this stage.
  • On notice, the Government’s updated procedure now provides notice in a language the detainee understands, information on how to file habeas in the appropriate district, access to counsel information, and a seven-day window before removal. Comparing this to analogous INA practice (no hearing within ten days of a notice to appear), and on an undeveloped record, the court concludes that the revised notice presently satisfies due process—while stressing that this conclusion is provisional. The district court must take evidence on whether more time (e.g., 30 days) is necessary given counsel availability and facility constraints.
  • In sum, the court grants a preliminary injunction preventing removals under the AEA because petitioners are likely to show that neither “invasion” nor “predatory incursion” exists as the statute uses those terms; it upholds, on the current record, the Government’s revised seven-day notice practice; and it remands for further proceedings, including factual development on notice adequacy. If class certification is later denied, the injunction will automatically lapse as to putative class members unless an appeal is timely taken and accepted. Other statutory tools for removing foreign terrorists remain unaffected.
  • Judge Ramirez consented in part, agreeing that the AEA was not appropriately invoked; and dissented in part, dissenting from the majority’s (plurality’s) holding that the government’s revised notice is adequate. Judge Ramirez agrees that Petitioners are likely to succeed on the merits because Proclamation No. 10903 does not identify an invasion or predatory incursion—actual or threatened—required by the authorizing statute, and the remaining preliminary-injunction factors also favor relief. Dissenting in part, Judge Ramirez would hold the government’s revised notice informative enough but constitutionally inadequate because seven days’ lead time does not afford detainees a realistic opportunity to contact counsel, file habeas petitions, and pursue relief, as due process requires. Unrebutted evidence shows systemic barriers at the Bluebonnet facility and after transfers: attorney video visits must be scheduled days ahead and are frequently canceled; detainees’ phone access can be cut off before moves; pro bono representation is scarce with one-to-four-week waitlists; non-attorney orientation programs and law-library resources are limited; and Bluebonnet detainees lack computer access, forcing reliance on mail that can delay court receipt even when petitions are “filed” under the mailbox rule. Given these constraints, the record supports requiring at least twenty-one days’ notice.
  • Judge Oldham dissented, contending that for 227 years presidents of both parties have possessed broad, largely unreviewable discretion under the Alien Enemies Act (AEA) to respond to declared wars, invasions, or threatened “predatory incursions.” Courts have historically declined to second-guess such determinations because they turn on national-security judgments beyond judicial competence, a principle reflected in Ludecke v. Watkins and echoed in cases giving conclusive effect to executive findings of invasion or insurrection. The majority’s decision to treat President Trump like a civil litigant who must plead facts sufficient to satisfy a judge, the dissent says, breaks with this tradition and aggrandizes the judiciary into multiple “Commanders in Chief.”
  • To ground that view, Judge Oldham recounts the AEA’s founding context: the Quasi-War with France. French privateers preyed on U.S. commerce, the XYZ Affair revealed bribery demands and threats of invasion, and public outrage spurred robust defense measures short of a formal war. Congress enacted the AEA to let the President act not only during declared wars but also upon threatened invasions or predatory incursions—precisely because early America’s vulnerabilities required swift, discretionary executive action based on information that might be secret or predictive. The legislative history shows Congress knowingly used “indefinite” language—covering even threatened incursions—despite Republican objections that it vested sweeping discretion in the President and minimized judicial roles. Although President Adams never invoked the AEA, the statute became a settled tool for emergencies; fears of abuse were addressed politically, not judicially. That design, Judge Oldham contends, still governs.
  • Turning to the present, Judge Oldham describes Tren de Aragua (TdA) as a violent Venezuelan organization that has infiltrated the U.S. amid large-scale migration, committing kidnappings, murders, and attacks on police across multiple states. According to the Proclamation and government declarations, TdA has embedded in shelters and communities, expanding through recruitment and intimidation. Judge Oldham emphasizes incidents in Colorado, Texas, Florida, Illinois, and Georgia as illustrations of a broader, organized threat distinct from “ordinary” crime.
  • Judge Oldham’s dissent further asserts that TdA is entwined with the Venezuelan state: it has infiltrated security services, exerts territorial control, and operates as part of a “hybrid criminal state.” The Biden Administration’s criminal-law approach (e.g., transnational criminal organization designation) proved insufficient; the Trump Administration then designated TdA a foreign terrorist organization and invoked the AEA, proclaiming that Venezuelan TdA members in the U.S. (age 14+) who lack citizenship or LPR status are liable to be apprehended and removed, and that by virtue of membership they are chargeable with hostility.
  • Procedurally, after the Supreme Court held AEA removal challenges must proceed via habeas, the named petitioners filed habeas petitions and sought classwide relief. The Supreme Court temporarily enjoined removals due to notice concerns and remanded for the Fifth Circuit to evaluate (1) preliminary-injunction factors on the AEA merits for the named petitioners and (2) what process is due for class notice. Judge Oldham would deny a merits injunction: the President’s proclamation of invasion/incursion (here, threatened and perpetrated via Venezuela’s use of TdA) is conclusive under Ludecke, Martin v. Mott, Luther v. Borden, the Prize Cases, and Sterling v. Constantin, which together assign these determinations to the political branches.
  • Responding to the majority and amici, Judge Oldham’s dissent says snippets in Ludecke and Eisentrager do not authorize judicial reweighing of invasion facts; “questions of interpretation” mean recognizing the statute’s delegation, not applying Twombly/Iqbal pleading standards to a President. Sterling, properly read, makes the executive’s predicate emergency finding conclusive while allowing judicial review of the legality of particular responsive measures (e.g., takings, due process)—a distinction that preserves review of how powers are used without second-guessing whether the exigency exists. The political question doctrine adds nothing here; statutory reviewability and delegation already resolve the issue.
  • On who qualifies as the “foreign nation or government,” Judge Oldham says it need not be TdA itself: Venezuela satisfies that element, and its use of private actors fits the AEA’s historical understanding (privateers, mercenaries). Lack of letters of marque is immaterial; what matters is sovereign authorization. Disputes that intelligence agencies doubt a Venezuela–TdA nexus cannot overcome the President’s constitutional role and access to sensitive information courts cannot demand or assess.
  • As to individual status, Judge Oldham reads Ludecke to bar challenges to the President’s discretionary choice to remove only a subset of “alien enemies.” Because the hostile nation is Venezuela, all Venezuelan citizens are alien enemies under the Act; narrowing removal to Venezuelan TdA members is an exercise of presidential discretion not subject to judicial second-guessing. Petitioners may contest only whether they are in fact Venezuelan, not whether they are TdA members.
  • Finally, Judge Oldham would hold that petitioners fail the other preliminary-injunction factors. There is no irreparable harm because the government represents it will not remove any alien who files habeas until the petition is adjudicated, preserving effective relief; and even absent the AEA, other authorities (e.g., INA provisions tied to the terrorist-organization designation) could support removal. The balance of equities and public interest favor the Executive’s national-security judgments. Judge Oldham would therefore deny preliminary relief on the AEA merits (while separately addressing notice issues elsewhere) and warns that the majority’s approach replaces two centuries of constitutional structure with judicial supremacy in matters of war and invasion.

• Madkins v. Bisignano, 24-60485, appeal from N.D. Miss.
  • per curiam (Smith, Dennis, Richman), social security
  • Affirming Social Security Administration Commissioner’s denial of application for disability benefits.
  • The Fifth Circuit affirmed the denial of Social Security disability benefits to Elnora Madkins, a former machine operator with multiple physical and mental conditions, because the Commissioner’s decision was supported by substantial evidence and any procedural errors were harmless. On remand after an earlier district-court reversal, the ALJ found severe impairments (including depression, anxiety, osteoarthritis, and degenerative disc disease), ruled Madkins could not perform past work, but concluded she retained a residual functional capacity for light work with significant restrictions (e.g., lifting/carrying up to ten pounds, occasional stooping, no ladders/ropes/scaffolds, simple routine tasks, and frequent—but not constant—interaction with others). Relying on vocational-expert testimony, the ALJ found jobs existed in significant numbers that she could perform, and the Appeals Council made that decision final; a magistrate judge affirmed.
  • On appeal, Madkins argued the ALJ erred by not addressing state psychologist Dr. Vicki Prosser’s opinion and by insufficiently weighing treating physician Dr. William Booker’s records and opinions. The court held any omission of Dr. Prosser’s opinion was harmless because her “moderate” social and adaptability limitations did not conflict with the ALJ’s restriction to “frequent” (one-third to two-thirds of the day) interactions, and Madkins forfeited her related vocational-hypothetical argument by raising it only in reply. As to Dr. Booker, the ALJ adequately considered his treatment notes and opinions, reasonably found parts unpersuasive due to internal inconsistencies and lack of support in the broader record, and was not required to articulate findings on every individual statement. Substantial evidence also supported rejecting a 25% off-task limitation given multiple sources noting adequate concentration and two-hour attention spans. Applying the deferential substantial-evidence standard and harmless-error doctrine, the court affirmed.

Unpublished decisions

• U.S. v. Osorio-Avelar, 24-20393, appeal from S.D. Tex.
  • per curiam (Jones, Graves, Rodriguez, by designation), criminal, sentencing
  • Affirming 375-month sentence on conviction of sex trafficking a minor, but vacating unpronounced special conditions of supervised release and remanding for entry of a written judgment conforming to orally pronounced special conditions.

• U.S. v. Mejia-Paz, 24-20494, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Sherrick, 25-30072, appeal from W.D. La.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Wilson, 23-30244, appeal from E.D. La.
  • per curiam (Richman, Southwick, Willett), criminal, sentencing
  • Affirming conviction and sentence for possession of a firearm by a felon.

• U.S. v. Hill, 24-30677, appeal from W.D. La.
  • per curiam (Smith, Dennis, Richman), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Banks, 23-30891, appeal from E.D. La.
  • per curiam (Richman, Southwick, Willett), criminal, sentencing
  • Affirming special conditions of supervised release term.

• U.S. v. Cantu, 25-40039, appeal from S.D. Tex.
  • per curiam (Southwick, Duncan, Engelhardt), criminal, First Step Act
  • Dismissing as frivolous appeal from denial of motion under First Step Act for reconsideration of denial of motion for sentence reduction.

• U.S. v. Morales-Luis, 25-40190, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Holmes v. State of Texas, 24-40583, appeal from E.D. Tex.
  • per curiam (Richman, Southwick, Willett), appellate jurisdiction
  • Dismissing appeal where district court had entered no judgment at time of appeal.

• U.S. v. Torres-Zermeno, 25-50004, c/w U.S. v. Torres, 25-50005, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Yezak v. Lange, 25-50127, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), prisoner suit
  • Affirming dismissal of Texas pretrial detainee’s sec. 1983 claims.

• Seaforth v. Cornerstone Home Lending, Inc., 25-50177, appeal from W.D. Tex.
  • per curiam (Smith, Haynes, Oldham), foreclosure
  • Dismissing as frivolous appeal from denial of motion to stay foreclosure proceedings.

• U.S. v. Alvizo, 24-50702, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas), criminal, sentence reduction
  • Affirming denial of motion to reduce 210-month sentence on conviction of conspiracy to possess with intent to distribute more than 500 grams of methamphetamine.

• U.S. v. Altamirano, 24-50816, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Cortez, 24-50971, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal, sentencing
  • Affirming 188-month sentence on conviction of conspiracy to possess with the intent to distribute 50 grams or more of actual methamphetamine.

• U.S. v. Anderson, 25-60095, appeal from S.D. Miss.
  • per curiam (Jones, Duncan, Douglas), criminal, sentencing
  • Affirming 20-month sentence on revocation of supervised release.

• McMillian v. Aberdeen School District, 24-60419, appeal from N.D. Miss.
  • Graves, J. (Elrod, King, Graves), Title VII, employment discrimination
  • Denying en banc rehearing, and revising original panel opinion to reverse district court’s denial of reinstatement and front-pay.