Noncitizens in the United States—including undocumented people—generally have constitutional due process rights before the government removes them. Those rights usually include notice, an opportunity to be heard, and the ability to seek meaningful review.
In fast-moving removal efforts tied to national security claims, the core question often becomes practical: Can a person actually exercise those rights in time and with access to counsel?
this rights guide explains that basic right in plain English, why it matters in a case involving 137 Venezuelan migrants, and what families and advocates can do when the government claims it has “lost track” of people after removal under the Alien Enemies Act.
It reflects public information as of Wednesday, January 14, 2026, including a sworn filing dated January 12, 2026.
Legal bases (high level)
- U.S. Constitution, Fifth Amendment (due process applies to “persons,” not only citizens)
- INA § 240 (removal proceedings procedures) and INA § 242 (judicial review limits and channels)
- 8 C.F.R. § 1003.15, § 1003.18, § 1240.10 (notice and hearing procedures in immigration court, generally)
- 8 C.F.R. § 292.5 (service on counsel, where represented)
- The Alien Enemies Act of 1798 is not part of the INA. Its modern use can raise novel questions about what process is still required.
Who has this right?
In general, all noncitizens physically present in the United States—including visa holders, asylum seekers, and undocumented people—have due process protections in removal-related actions.
The scope and forum can differ. Some procedures happen in immigration court. Others occur through expedited processes. Some issues are litigated in federal district court.
This guide generally applies to people who were removed or detained in fast-moving national-security-labeled operations, and to their immediate family members trying to locate them and secure counsel.
1) Overview of the case and parties involved
A federal court dispute in Washington, D.C. has focused national attention on what due process requires when the government uses an old wartime statute, the Alien Enemies Act, as a basis for rapid removals.
On January 12, 2026, Secretary of state marco rubio filed a sworn declaration in federal court stating that the U.S. government has lost track of 137 Venezuelan migrants removed in 2025 under the Alien Enemies Act. A sworn declaration is a written statement signed under penalty of perjury. Courts treat it as evidence.
The filing responded to a December 2025 ruling by Chief U.S. District Judge James E. Boasberg in a case identified as Abrego Garcia v. Noem, No. 25-cv-00789 (D.D.C.). The ruling reportedly concluded that removals were “hurried” and denied due process.
The remedy question now includes whether people must be returned for hearings, or whether hearings can occur remotely. “Lost track of” in this context does not necessarily mean the government never knew.
It can mean there is no reliable, current confirmation of custody status, location, or ability to contact the affected people. It can also reflect limits tied to foreign detention systems, diplomatic access, and record transfers after international movements.
2) Key facts and statistics—and why each point changes the rights analysis
The reported facts matter because due process is not only about formal rules. It is also about whether a person can actually present a case.
- March 2025 removals: The administration reportedly invoked the Alien Enemies Act of 1798 and removed about 252 Venezuelans, alleging ties to Tren de Aragua. Allegations of gang affiliation can affect detention, bond, and risk assessments.
- Initial detention in El Salvador: The group was reportedly flown to El Salvador’s CECOT facility. If a person is outside the United States, access to U.S. counsel, documents, and U.S.-based witnesses becomes harder.
- July 2025 transfer to Venezuela: A later transfer as part of a prisoner exchange is described as a turning point. Transfers can break the “chain” of custody records and complicate who can produce the person for a hearing.
- The subset of 137: The present dispute reportedly focuses on 137 Venezuelan migrants said to have been removed solely under the Alien Enemies Act, without a chance to challenge the designation.
- DHS scale figures: DHS reported 622,000 deportations and an estimated 1.9 million self-deportations in 2025 (per a DHS newsroom release dated Dec. 19, 2025). Large-scale enforcement can increase the risk of record gaps.
Some details are confirmed only to the extent the court record and official releases confirm them. Other claims, including allegations of mistreatment, remain allegations in the public reporting referenced.
When facts are contested, courts often order additional status reports, sworn statements, or documentary production. This guide is especially relevant where removal occurred without a standard immigration court hearing.
If you suspect a family member was removed quickly without seeing an immigration judge, act promptly. Evidence and records can be harder to obtain as time passes.
3) Legal framework and due-process implications
What the Alien Enemies Act is—and why its use raises due process questions
The Alien Enemies Act of 1798 is a historic statute associated with wartime authority. Using it today to carry out modern removals creates litigation questions about how that authority interacts with the Constitution and the INA’s normal procedures.
Even when the executive branch asserts national security or foreign policy interests, courts often focus on a basic point: What process is required before the government deprives a person of liberty or forcibly removes them?
Due process basics in removal-related contexts
- Notice of the charges or basis for the government’s action
- A meaningful chance to respond and present evidence
- A chance to consult counsel at the person’s own expense. See INA § 240(b)(4)(A)
- A decisionmaker and a record that supports meaningful review
The precise procedures vary. For example, people in standard removal proceedings under INA § 240 receive a Notice to Appear and proceedings in immigration court. Others may face expedited processes with different rules and different limits on review.
But due process still requires a real opportunity to contest key issues, especially where factual mistakes are possible.
Practical barriers highlighted by “whereabouts unknown”
- Inability to serve notice of hearings or deadlines
- Lack of confidential access to counsel
- Difficulty obtaining identity documents, medical records, or country-condition evidence
- Problems with translation, secure communications, and remote testimony
- Limits on travel or consular access
Courts often weigh asserted constraints—security, diplomatic sensitivity, and logistics—against the individual’s interest in a meaningful chance to contest the government’s basis for removal.
4) Judicial proceedings and rulings: what the court ordered, and why remedies get harder when people cannot be located
The procedural timeline described is central to the litigation posture and remedy analysis. Below is a concise sequence of the key events in the federal case.
- Challenge filed. A federal suit was filed in D.D.C. identified as Abrego Garcia v. Noem, No. 25-cv-00789 (D.D.C.).
- December 2025 ruling. Chief Judge Boasberg reportedly found due process deficiencies in the March 2025 removals and required an opportunity to challenge the “enemy” designation.
- January 12, 2026 declaration. Secretary Rubio filed a sworn declaration stating the U.S. does not know the current whereabouts of class members and raising foreign policy objections to locating or returning them.
From a rights perspective, the remedy question usually drives the litigation: must people be returned, can hearings be remote, or what if the government cannot produce the person at all?
When a court is told people cannot be located, judges often consider procedural tools short of immediate return orders. These can include regular status reports, additional sworn declarations, and requirements that the government describe recordkeeping steps and custody transfers.
- Ordering regular status reports
- Requiring additional sworn declarations from responsible agencies
- Directing the government to describe recordkeeping steps, custody transfers, and diplomatic requests
- Setting parameters for remote proceedings if feasible, including interpreter access and attorney confidentiality
- Establishing methods to identify class members and provide notice
In federal litigation, courts may set short deadlines for status reports or compliance plans. Families should have counsel monitor the docket closely, since timelines can change quickly.
5) How to read official statements and sworn declarations
A sworn declaration is not the same as a press statement. In court, a declarant is attesting to facts “under penalty of perjury,” and the opposing side may seek to test those assertions through further evidence or cross-examination if permitted.
In the described declaration, Secretary Rubio reportedly asserted that the U.S. government does not know the current whereabouts of the 137 Venezuelan migrants and that efforts to locate them could harm foreign policy interests.
Courts often separate factual assertions, operational constraints, and policy judgments. Even if a court credits some constraints, it may still require a process that is workable or require the government to show what alternatives were attempted.
Government communications can be internally consistent and still incomplete. Multiple agencies (DHS, ICE, CBP, DOS, EOIR) may hold different pieces of the record.
6) Impact on individuals and human rights considerations
When a person’s location is uncertain, families often face a cascade of practical and legal problems. They cannot confirm whether the person is alive, detained, or free.
Families may be unable to provide money, medication information, or documents, and they may be unable to arrange attorney-client communications or collect declarations from witnesses needed to challenge allegations.
Advocacy groups have alleged serious mistreatment while some deportees were held in El Salvador; those remain allegations in the referenced reporting. If substantiated, such claims can increase urgency for court-ordered reporting and affect a judge’s evaluation of harm and interim relief.
“Legal limbo” often means the court may have recognized a right to challenge the designation, but the person cannot be located to receive notice, consult counsel, or appear.
Practically, attorneys and advocates may try to corroborate facts through copies of removal paperwork and flight records, family declarations describing last contact, requests for detention history, and monitoring official announcements and court filings.
7) Context: geopolitical and policy environment to watch next
The government’s feasibility arguments often rise or fall with geopolitics. Shifts in leadership, recognition, and negotiations can affect access to detention rosters, lawyer or monitor access, verification of transfers, and the feasibility of remote hearings.
The modern invocation of the Alien Enemies Act is viewed by many observers as outside its traditional wartime setting. That framing is part of why litigation is testing the boundaries of executive power and individual rights.
- Watch for additional court orders requiring status updates
- Watch for any move toward a structured remote hearing protocol
- Watch for public DHS or State Department statements about record reconciliation, transfers, or access
8) Official sources and references (how to verify updates)
Because this dispute is evolving, rely on primary sources where possible. Below is guidance on the best sources to verify updates and the types of information they typically provide.
Federal court filings and orders are best for what the judge required and what the government represented under oath. Agency press releases and reports are best for enforcement totals and policy framing, though they may not include case-level details.
EOIR resources are best for general court-process explanations but not for classified or sealed details. Key official references mentioned in this guide include the DHS newsroom release dated Dec. 19, 2025 and the case Abrego Garcia v. Noem, No. 25-cv-00789 (D.D.C.), with a sworn declaration dated January 12, 2026.
For the interactive tools planned to display Key facts and statistics, Judicial proceedings and rulings, and Official sources and references, use the primary sources above and monitor the docket for the most current filings.
How to exercise due process rights in practice (and what families can do now)
If the person is in the U.S. or in DHS custody
- Ask for the A-Number and all charging documents (often the NTA).
- Get counsel quickly. In removal proceedings, the right is to counsel at no government expense. See INA § 240(b)(4)(A).
- Preserve evidence that rebuts allegations, including identity records, employment records, and witness statements.
- Track hearing notices and address changes, since missing a hearing can trigger an in-absentia order in many cases.
If the person was removed and their location is unknown
- Collect identifiers: full name, date of birth, A-Number, passport number, and last known detention location.
- Preserve communications: screenshots, call logs, money transfer receipts, and prior detention paperwork.
- Have an attorney monitor the federal docket in the relevant case, if the person may be a class member.
- Consider contacting consular resources, while recognizing that diplomatic access may be limited.
Common ways rights are waived or lost
- Signing papers without translation or explanation
- Missing deadlines or hearings due to lack of notice
- Accepting “voluntary return” or stipulated removal without counsel, when relief may exist
- Failing to update address with the court and DHS when required
Do not rely on verbal assurances that “a hearing will be scheduled later.” Get written proof of filings, dates, and where the case is pending.
What to do if rights are violated
If someone was removed without a meaningful chance to challenge the basis for removal, potential next steps can include consulting counsel about motions to reopen, if an immigration court order exists.
Assess whether a habeas or other federal action may be available, especially where the issue is custody, access to counsel, or compliance with a federal court order. These areas are complex and vary by jurisdiction and statute.
Document every attempt to locate the person and obtain records, since courts often evaluate diligence and feasibility when assessing remedies.
Because rules differ by circuit and the posture of the case matters, an attorney should review the exact history and paperwork before any filing.
Legal help and official information
- AILA Lawyer Referral: AILA “Find a Lawyer”
- EOIR (immigration court system information): EOIR
Legal Disclaimer: This article provides general information about immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws vary by jurisdiction.
Consult a qualified immigration attorney for advice about your specific situation.
This report examines the constitutional rights of noncitizens during fast-tracked removals under the Alien Enemies Act. It highlights a January 2026 court filing where the U.S. government admitted losing track of 137 Venezuelan migrants. The case, Abrego Garcia v. Noem, raises critical questions about whether national security claims can bypass the Fifth Amendment’s guarantee of a meaningful opportunity to be heard and access legal representation.
