A.A.R.P. v. Trump

Cite as: 605 U. S. ____ (2025) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

_________________

No. 24A1007

_________________

A. A. R. P., ET AL. v. DONALD J. TRUMP, PRESIDENT

OF THE UNITED STATES, ET AL.

ON APPLICATION FOR INJUNCTION

[May 16, 2025]

PER CURIAM.

The President has invoked the Alien Enemies Act (AEA),

Rev. Stat. §4067, 50 U. S. C. §21, to remove Venezuelan na-

tionals who are members of Tren de Aragua (TdA), a desig-

nated foreign terrorist organization. See Presidential Proc-

lamation No. 10903, 90 Fed. Reg. 13033 (2025). Applicants

are two detainees identified as members of TdA and a pu-

tative class of similarly situated detainees in the Northern

District of Texas. All of the alleged TdA members in the

putative class are currently being held in U. S. detention

facilities. In the application before the Court, the detainees

seek injunctive relief against summary removal under the

AEA.

I

On April 17, 2025, the District Court denied the detain-

ees’ motion for a temporary restraining order (TRO) against

summary removal under the AEA. No. 25−cv−59, ECF Doc.

27. The detainees allege that, hours later, putative class

members were served notices of AEA removal and told that

they would be removed “tonight or tomorrow.” ECF Doc.

30, p. 1. On April 18 at 12:34 a.m. central time, the detain-

ees moved for an emergency TRO. See ibid. At 12:48 p.m.,

the detainees moved for a ruling on that motion or a status

conference by 1:30 p.m. ECF Doc. 34. At 3:02 p.m., they

appealed “the constructive denia[l]” of the emergency TRO

2 A. A. R. P. v. TRUMP

Per Curiam

to the Fifth Circuit. ECF Doc. 36, p. 1. The detainees also

applied to this Court for a temporary injunction.

We understood the Government to assert the right to re-

move the detainees as soon as midnight central time on

April 19. The Government addressed the detainees’ allega-

tions on April 18 only at an evening hearing before the Dis-

trict Court for the District of Columbia, where the detainees

had separately sought relief. The Government guaranteed

that no putative class members would be removed that day.

Tr. of Proceedings in J. G. G. v. Trump, No. 25−cv−766,

ECF Doc. 93, p. 9. But it further represented that, in its

view, removal of putative class members as soon as the next

day “would be consistent with” its due process obligations,

and it “reserve[d] the right” to take such action. Id., at 26;

see id., at 16 (explanation by the court that “tomorrow . . .

starts at 12:01 a.m.”). Evidence now in the record (although

not all before us on April 18) suggests that the Government

had in fact taken steps on the afternoon of April 18 toward

removing detainees under the AEA—including transport-

ing them from their detention facility to an airport and later

returning them to the facility. See Supp. App. to Reply

1a−5a. Had the detainees been removed from the United

States to the custody of a foreign sovereign on April 19, the

Government may have argued, as it has previously argued,

that no U. S. court had jurisdiction to order relief. See Ap-

plication To Vacate Injunction in Noem v. Abrego Garcia,

No. 24A949 (Apr. 7, 2025), pp. 11−20.

At 12:52 a.m. eastern time (11:52 p.m. central time), we

ordered the Government—in light of all these circum-

stances—“not to remove any member of the putative class

of detainees” in order to preserve our jurisdiction to con-

sider the application. 604 U. S. ___ (2025). We invited the

Government to respond to that application after the Fifth

Circuit ruled. The Fifth Circuit dismissed the detainees’

appeal for lack of jurisdiction and denied their motion for

injunction pending appeal as premature, on the ground that

Cite as: 605 U. S. ____ (2025) 3

Per Curiam

the detainees “gave the [district] court only 42 minutes to

act.” No. 25−10534, ECF Doc. 14, p. 2. We now construe

the application as a petition for writ of certiorari from the

decision of the Fifth Circuit. See Reply 15. We grant the

petition as well as the application for injunction pending

further proceedings, vacate the judgment of the Fifth Cir-

cuit, and remand for further proceedings.

II

The Fifth Circuit erred in dismissing the detainees’ ap-

peal for lack of jurisdiction. Appellate courts have jurisdic-

tion to review interlocutory orders that have “the practical

effect of refusing an injunction.” Carson v. American

Brands, Inc., 450 U. S. 79, 84 (1981). A district court’s in-

action in the face of extreme urgency and a high risk of “se-

rious, perhaps irreparable,” consequences may have the ef-

fect of refusing an injunction. 16 C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure §3924.1, pp. 174,

180−181 (3d ed. 2012) (quoting Baltimore Contractors, Inc.

v. Bodinger, 348 U. S. 176, 181 (1955)). Here the District

Court’s inaction—not for 42 minutes but for 14 hours and

28 minutes—had the practical effect of refusing an injunc-

tion to detainees facing an imminent threat of severe, irrep-

arable harm. Accordingly, we vacate the judgment of the

Court of Appeals.

“[T]he Fifth Amendment entitles aliens to due process of

law in the context of removal proceedings.” Trump v.

J. G. G., 604 U. S. ___, ___ (2025) (per curiam) (slip op., at

3) (internal quotation marks omitted). “Procedural due pro-

cess rules are meant to protect” against “the mistaken or

unjustified deprivation of life, liberty, or property.” Carey

v. Piphus, 435 U. S. 247, 259 (1978). We have long held that

“no person shall be” removed from the United States “with-

out opportunity, at some time, to be heard.” The Japanese

Immigrant Case, 189 U. S. 86, 101 (1903). Due process re-

quires notice that is “reasonably calculated, under all the

4 A. A. R. P. v. TRUMP

Per Curiam

circumstances, to apprise interested parties” and that “af-

ford[s] a reasonable time . . . to make [an] appearance.”

Mullane v. Central Hanover Bank & Trust Co., 339 U. S.

306, 314 (1950). Accordingly, in J. G. G., this Court ex-

plained—with all nine Justices agreeing—that “AEA de-

tainees must receive notice . . . that they are subject to re-

moval under the Act . . . within a reasonable time and in

such a manner as will allow them to actually seek habeas

relief ” before removal. 604 U. S., at ____ (slip op., at 3). In

order to “actually seek habeas relief,” a detainee must have

sufficient time and information to reasonably be able to con-

tact counsel, file a petition, and pursue appropriate relief.

The Government does not contest before this Court the

applicants’ description of the notice afforded to AEA detain-

ees in the Northern District of Texas, nor the assertion that

the Government was poised to carry out removals immi-

nently. The Government has represented elsewhere that it

is unable to provide for the return of an individual deported

in error to a prison in El Salvador, see Abrego Garcia v.

Noem, No. 25−cv−951 (D Md.), ECF Docs. 74, 77, where it

is alleged that detainees face indefinite detention, see Ap-

plication for Injunction 11. The detainees’ interests at

stake are accordingly particularly weighty. Under these

circumstances, notice roughly 24 hours before removal, de-

void of information about how to exercise due process rights

to contest that removal, surely does not pass muster. But

it is not optimal for this Court, far removed from the cir-

cumstances on the ground, to determine in the first in-

stance the precise process necessary to satisfy the Consti-

tution in this case. We remand the case to the Fifth Circuit

for that purpose.

To be clear, we decide today only that the detainees are

entitled to more notice than was given on April 18, and we

grant temporary injunctive relief to preserve our jurisdic-

tion while the question of what notice is due is adjudicated.

See post, at 13 (ALITO, J., dissenting). We did not on April

Cite as: 605 U. S. ____ (2025) 5

Per Curiam

19—and do not now—address the underlying merits of the

parties’ claims regarding the legality of removals under the

AEA. We recognize the significance of the Government’s

national security interests as well as the necessity that

such interests be pursued in a manner consistent with the

Constitution. In light of the foregoing, lower courts should

address AEA cases expeditiously.

III

The dissent disputes both the Court’s jurisdiction and the

availability of classwide relief. We do not find its reasoning

persuasive.

First, we reject the dissent’s characterization of the

events that transpired on April 18, which lead it to question

our jurisdiction. District courts should approach requests

for preliminary relief with care and consideration, see post,

at 3−4 (ALITO, J., dissenting), but exigent circumstances

may impose practical constraints. Preliminary relief is

“customarily granted on the basis of procedures that are

less formal and evidence that is less complete than in a trial

on the merits.” Lackey v. Stinnie, 604 U. S. ___, ___ (2025)

(slip op., at 6) (quoting University of Tex. v. Camenisch, 451

U. S. 390, 395 (1981)). The purpose of such relief is “merely

to preserve the relative positions of the parties” pending

further proceedings. Lackey, 604 U. S., at ___ (slip op., at

6) (quoting Camenisch, 451 U. S., at 395).

In this case, the record before the District Court, alt-

hough limited, indicated that removals of putative class

members were likely imminent. Contra, post, at 4−6

(ALITO, J., dissenting). The detainees attached four decla-

rations to their emergency motion for a TRO. In one, for

example, an attorney relayed a detainee’s report that immi-

gration officers “had informed them that they will be de-

ported either today or tomorrow.” ECF Doc. 30−1. In a sec-

ond, a nonprofit director described conversations with

6 A. A. R. P. v. TRUMP

Per Curiam

family members of detainees and linked to a video of detain-

ees holding notices of removal as evidence that detainees

“were being removed.” ECF Doc. 30−2.

Importantly, the relevant question for purposes of our ju-

risdiction is whether, at the time this Court was called upon

to intervene, the District Court’s inaction had the effect of

refusing an injunction. In their application to this Court,

the detainees represented that “[m]any individuals [had]

already been loaded on to buses, presumably headed to the

airport.” Application for Injunction 1. Shortly thereafter,

the Government represented on the record in federal court

that it reserved the right to remove detainees after mid-

night. We had the power to issue injunctive relief to pre-

vent irreparable harm to the applicants and to preserve our

jurisdiction over the matter. 28 U. S. C. §1651(a). Now that

the Fifth Circuit has ruled, our certiorari jurisdiction also

supports review in the ordinary course.

Finally, this Court may properly issue temporary injunc-

tive relief to the putative class in order to preserve our ju-

risdiction pending appeal.* Named applicants A. A. R. P.

and W. M. M. assert that they are at imminent risk of being

classified as alien enemies and removed from the United

——————

*We note that the District Court recently denied class certification as

to the detainees’ underlying habeas claims challenging the validity of re-

moval under the AEA. See ECF Doc. 67. By its own terms, the District

Court’s order is “automatically vacated” by our order granting a writ of

certiorari. Id., at 2. And in any event, the District Court’s order primar-

ily addressed the detainees’ ability to challenge the validity of AEA re-

moval on a classwide basis. The application before this Court seeks only

to vindicate notice rights on a classwide basis. To the extent the District

Court’s order addressed due process, see post, at 12 (ALITO, J., dissent-

ing) (citing ECF Doc. 67, pp. 29−31, 33, 38−39), the District Court’s con-

cerns as to the propriety of classwide relief focused on considerations

downstream of the initial notice necessary for detainees to raise any sub-

stantive claims against AEA removal, see ECF Doc. 67, pp. 29−31, 33,

38−39.

Cite as: 605 U. S. ____ (2025) 7

Per Curiam

States, but the record does not indicate that they have re-

ceived any formal notice of removal under the AEA. See

ECF Doc. 38, pp. 5−6. The named applicants, along with

putative class members, are entitled to constitutionally ad-

equate notice prior to any removal, in order to pursue ap-

propriate relief. Although the putative class members may

ultimately take different steps to protect their own inter-

ests in response to such notice, the notice to which they are

entitled is the same. And because courts may issue tempo-

rary relief to a putative class, see 2 W. Rubenstein, New-

berg & Rubenstein on Class Actions §4:30 (6th ed. 2022 and

Supp. 2024), we need not decide whether a class should be

certified as to the detainees’ due process claims in order to

temporarily enjoin the Government from removing putative

class members while the question of what notice is due is

adjudicated.

We recognize that the Government “has agreed to forgo

removing the named petitioners pursuant to the AEA while

their habeas proceedings are pending.” Opposition to

Emergency Application 11. But we reject the proposition

that a class-action defendant may defeat class treatment, if

it is otherwise proper, by promising as a matter of grace to

treat named plaintiffs differently. Cf. FBI v. Fikre, 601

U. S. 234, 241 (2024) (explaining that voluntary cessation

of challenged conduct does not moot a claim). And we are

skeptical of the self-defeating notion that the right to the

notice necessary to “actually seek habeas relief,” J. G. G.,

604 U. S., at ___ (slip op., at 3), must itself be vindicated

through individual habeas petitions, somehow by plaintiffs

who have not received notice.

* * *

The application for an injunction pending further pro-

ceedings is granted. The motion for leave to file a supple-

mental appendix under seal is also granted. Additionally,

applicants suggested this Court treat the application as a

8 A. A. R. P. v. TRUMP

Per Curiam

petition for a writ of certiorari; doing so, the petition is

granted. The judgment of the Fifth Circuit is vacated, and

the case is remanded to the Fifth Circuit. In resolving the

detainees’ appeal, the Fifth Circuit should address (1) all

the normal preliminary injunction factors, including likeli-

hood of success on the merits, as to the named plaintiffs’

underlying habeas claims that the AEA does not authorize

their removal pursuant to the President’s March 14, 2025,

Proclamation, and (2) the issue of what notice is due, as to

the putative class’s due process claims against summary re-

moval. The Government is enjoined from removing the

named plaintiffs or putative class members in this action

under the AEA pending order by the Fifth Circuit and dis-

position of the petition for a writ of certiorari, if such writ

is timely sought. Should the petition for a writ of certiorari

be denied, this order shall terminate automatically. In the

event the petition for a writ of certiorari is granted, the or-

der shall terminate upon the sending down of the judgment

of this Court.

The Government may remove the named plaintiffs or pu-

tative class members under other lawful authorities.

It is so ordered.

Cite as: 605 U. S. ____ (2025) 1

KAVANAUGH, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 24A1007

_________________

A. A. R. P., ET AL. v. DONALD J. TRUMP, PRESIDENT

OF THE UNITED STATES, ET AL.

ON APPLICATION FOR INJUNCTION

[May 16, 2025]

JUSTICE KAVANAUGH, concurring.

I understand and agree with the Court’s decision to grant

a temporary injunction. The injunction simply ensures that

the Judiciary can decide whether these Venezuelan

detainees may be lawfully removed under the Alien

Enemies Act before they are in fact removed. The

underlying legal questions that the courts may need to

decide before the removals occur include: (i) whether the

Alien Enemies Act (as distinct from the ordinary removal

process under the Immigration and Nationality Act)

authorizes removal of these detainees and (ii) if so, what

notice is due before removal. Several Federal District

Courts have already issued conflicting rulings on the

underlying legal issues. Compare A. S. R. v. Trump,

No. 3:25–cv–113 (WD Pa., May 13, 2025), with G. F. F. v.

Trump, No. 1:25–cv–2886 (SDNY, May 6, 2025), D. B. U. v.

Trump, No. 1:25–cv–1163 (D Colo., May 6, 2025), and

J. A. V. v. Trump, No. 1:25–cv–72 (SD Tex., May 1, 2025).

The Executive Branch and the detainees agree about the

urgency and importance of those legal questions: The

Executive Branch has represented that this case is

important for America’s national security and that it is

“critical to remove TdA members subject to the

Proclamation quickly.” Application To Vacate Orders in

Trump v. J. G. G., No. 24A931 (Mar. 28, 2025), p. 37; see

Opposition to Emergency Application 3, 5. For their part,

2 A. A. R. P. v. TRUMP

KAVANAUGH, J., concurring

the detainees have explicitly requested that the Court move

fast and grant certiorari before judgment. See Reply 4.

The circumstances call for a prompt and final resolution,

which likely can be provided only by this Court. At this

juncture, I would prefer not to remand to the lower courts

and further put off this Court’s final resolution of the

critical legal issues. Rather, consistent with the Executive

Branch’s request for expedition—and as the detainees

themselves urge—I would grant certiorari, order prompt

briefing, hold oral argument soon thereafter, and then

resolve the legal issues.

Cite as: 605 U. S. ____ (2025) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 24A1007

_________________

A. A. R. P., ET AL. v. DONALD J. TRUMP, PRESIDENT

OF THE UNITED STATES, ET AL.

ON APPLICATION FOR INJUNCTION

[May 16, 2025]

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dis-

senting.

I cannot join the decision of the Court. First and most

important, we lack jurisdiction and therefore have no au-

thority to issue any relief. Second, even if we had such au-

thority, the applicants have not satisfied the requirements

for the issuance of injunctive relief pending appellate re-

view. Third, granting certiorari before any decision on the

merits has been made by either the District Court or the

Court of Appeals is unwarranted.

I

A

“Jurisdiction is power to declare the law,” and “[w]ithout

jurisdiction the court cannot proceed at all.” Ex parte

McCardle, 7 Wall. 506, 514 (1869). So in order for us to do

anything in this matter, “we must assure ourselves that we

have jurisdiction.” Abbott v. Perez, 585 U. S. 579, 594

(2018).

The Court’s theory of jurisdiction, as I understand it, is

as follows. Under 28 U. S. C. §1254, we have jurisdiction to

review a “case” that is properly before one of the federal

courts of appeals. This case was properly before the Court

of Appeals for the Fifth Circuit because the two habeas pe-

titioners, A. A. R. P. and W. M. M., took an appeal from a

District Court order that refused to issue “an injunction.”

2 A. A. R. P. v. TRUMP

ALITO, J., dissenting

§1292(a)(1). Although the District Court never actually is-

sued such an order or said that it would do so, the District

Court constructively denied injunctive relief by failing to

act under circumstances where prompt intervention was

urgently needed. See ante, at 3.

This theory rests on a mischaracterization of what hap-

pened in the District Court. I do not dispute that a district

court’s failure to act expeditiously may, in some circum-

stances, have “the practical effect of refusing an injunction”

and thus entitle a party to take an interlocutory appeal.

Carson v. American Brands, Inc., 450 U. S. 79, 84 (1981);

see also §1292(a)(1). But that principle does not apply here

where (a) the District Court had no good reason to think

that either A. A. R. P. or W. M. M. was in imminent danger

of removal, (b) the record at that time contained only

sketchy evidence about any imminent threat to members of

the class of alien detainees they sought to have certified, (c)

the court took the entirely reasonable position that it would

wait for the Government to respond to the applicants’ re-

quest for a temporary restraining order (TRO) before act-

ing, (d) the court set a very short deadline for the filing of

the Government’s response, and (e) the court was working

diligently on the difficult issues presented by the appli-

cants’ request for relief for themselves and the members of

the putative class.

The Court asserts that the District Court failed to act “for

14 hours and 28 minutes,” ante, at 3, but that is misleading.

Here is what actually happened. On the evening of April

17, lawyers for A. A. R. P. and W. M. M. made a phone call

in which they demanded “to talk to the Judge immediately

. . . and have the Judge issue an order.” Order in No. 1:25–

cv–59 (ND Tex., Apr. 21, 2025), ECF Doc. 47–1, p. 2. As the

District Court has since correctly noted, judges are gener-

ally not permitted to consider such ex parte communica-

tions. See ECF Doc. 47, at 1–2 (citing Code of Conduct for

Federal Judges, Canon 3(A)(4)); see also Fed. Rule Civ.

Cite as: 605 U. S. ____ (2025) 3

ALITO, J., dissenting

Proc. 65(b)(1). So the judge issued an electronic order ad-

monishing the attorneys and stating that “[t]o the extent

either party seeks emergency relief, it may file a motion to

do so. If an emergency motion is filed, the opposing party

shall have 24 hours to file a response.” ECF Doc. 29.

Thus, when the attorneys for A. A. R. P. and W. M. M.

filed their renewed motion for a TRO at 12:34 a.m. on April

18, they were fully aware that the District Court intended

to give the Government 24 hours to file a response. But in

that motion, the attorneys said nothing about a plan to ap-

peal if the District Court elected to wait for that response.

It was not until their 12:48 p.m. emergency motion for an

immediate status conference that the attorneys suddenly

informed the court that they would file an appeal if the Dis-

trict Court did not act within 42 minutes, i.e., by 1:30 p.m.

No. 1:25–cv–59 (ND Tex., Apr. 18, 2025), ECF Doc. 34, p. 2.

The attorneys then filed their appeal at 3:02 p.m., just 133

minutes after they put the District Court on notice that

they would seek appellate relief. Reply 10. Whether or not

the actions taken by applicants’ attorneys are thought to be

justified under the circumstances, delivering such an ulti-

matum to a district court judge (“Act on my motion on a

complex matter within 42 or 133 minutes or I’ll file an ap-

peal and divest you of jurisdiction”) represented a very

stark departure from what is usually regarded as accepta-

ble practice.

Faced with applicants’ extraordinary demand, the Dis-

trict Court proceeded in an entirely reasonable manner.

The Court characterizes the District Court’s behavior dur-

ing the period in question as “inaction,” ante, at 3, but in

my judgment, that is unfair. Rather, as the judge has

noted, he “was working with utmost diligence to resolve

[the] important and complicated issues [presented by the

motion] as quickly as possible.” ECF Doc. 41, p. 4. The

judge explained that he had not yet ruled because he could

4 A. A. R. P. v. TRUMP

ALITO, J., dissenting

not “shirk [his] responsibility to decide . . . complicated is-

sues of law without at least some opportunity to review the

pleadings and attachments and to get thoughtful responses

from the parties.” Id., at 5. And the judge “was prepared

to issue an order” “as soon as practicable after the govern-

ment filed its response shortly after midnight, if not

sooner.” Id., at 4.

We should commend this careful approach, not criticize

it. In the past few months alone, we have vacated or stayed

district court orders that granted temporary injunctive re-

lief without adequate consideration of the relevant issues.

See Trump v. J. G. G., 604 U. S. ___ (2025) (per curiam);

Department of Education v. California, 604 U. S. ___ (2025)

(per curiam). But in this case, a District Court judge is

deemed to have constructively denied an injunction by fail-

ing to act within the space of a little over two hours on an

application that required consideration of important and

difficult questions and that was supported by factual sub-

missions that, as I will explain below, were very weak.

Under these circumstances, I cannot agree that the Dis-

trict Court’s failure to act amounted to a constructive denial

of the applicants’ request for relief.

B

As I mentioned, the factual support provided to the Dis-

trict Court was weak. The Court claims that the facts pre-

sented to the District Court on April 18 showed that there

was an emergency entailing a high risk of “serious, perhaps

irreparable, consequences.” Ante, at 3 (internal quotation

marks omitted). But it is important not to conflate the in-

formation that was in the record on April 18 with the new

information that was presented to this Court several days

later.

The record that was before the District Court on April 18

(which is the same record that was before us at midnight on

that date) included no concrete evidence that any removals

Cite as: 605 U. S. ____ (2025) 5

ALITO, J., dissenting

were so imminent that a ruling had to be made immedi-

ately. The applicants’ factual support consisted of six sworn

declarations and a photograph that the applicants asserted

was an image of a notice of removal. See App. to Applica-

tion 32–37, 56–65. But neither the declarations nor the

photograph showed “extreme urgency.” Ante, at 3.

The declarations certainly did not show that action was

urgently needed to protect A. A. R. P. or W. M. M. The Gov-

ernment had represented in District Court that it would not

remove either of those men—the only parties who were in-

disputably before the court—while their habeas petitions

were pending. Order in No. 1:25–cv–59 (ND Tex., Apr. 17,

2025), ECF Doc. 27, p. 1. And the two declarations concern-

ing those individuals included no allegations about immi-

nent removal. App. to Application 32–37. Indeed, the dec-

larations concerning them were signed on April 15, prior to

the Government’s representation that they would not be re-

moved while their habeas petitions were pending. As a re-

sult, the declarations were outdated and provided no sup-

port for the claim that either A. A. R. P. or W. M. M. was

threatened with removal on April 18 or 19.1

The remaining evidence in the record at that time con-

cerned only the unnamed members of the as-yet uncertified

——————

1 The Government “unequivocally” told the District Court that it did

not “ ‘presently expect to remove A.A.R.P. or W.M.M. under the [Alien

Enemies Act (AEA)] until after the pending habeas petition is resolved,’ ”

and that it would “ ‘update’ ” the District Court if that changed. ECF

Doc. 27, at 1. And in their application for relief before this Court, the

applicants did not assert that A. A. R. P. or W. M. M. in particular were

at risk of being removed. To the contrary, the applicants represented

that they had contacted the Government and were told that “the two

named Applicants had not been given [removal] notices.” Application 5,

n. 3. The Government later confirmed in its filings before this Court that

it “has agreed not to remove pursuant [to] the AEA those AEA detainees

who do file habeas claims,” including the named applicants. Opposition

to Emergency Application 2.

6 A. A. R. P. v. TRUMP

ALITO, J., dissenting

class. And of the four declarations concerning those indi-

viduals, only one said anything about when removal might

happen. In that declaration, a lawyer swore that she spoke

on the phone with an unidentified Venezuelan man who

said that “ICE had informed them that they will be de-

ported either today or tomorrow to Venezuela.” Id., at 56.

In other words, the most specific piece of evidence in the

record was a double-hearsay statement that cannot be

traced back to any specific government official. Outside of

that, none of the remaining declarations said anything

about imminent removal. They merely stated that certain

aliens were receiving deportation notices, but it was not

claimed that these notices specified when removal might oc-

cur. See id., at 57–58 (Brané decl.); id., at 59–60 (Collins

decl.); id., at 61 (Siegel decl.). And the image of a document

labeled “Notice and Warrant of Apprehension and Removal

Under the Alien Enemies Act,” which the applicants termed

a removal notice, likewise said nothing about the time of

removal. See id., at 64–65. Other than these declarations,

the court was left with unsupported attorney assertions in

the application itself.

Ignoring these deficiencies in the record before the Dis-

trict Court, the Court relies on information that was not in

the District Court record, namely, (a) statements made by

a Government attorney in a hearing in another case that

was held in Washington, D. C., during the evening on April

18, well after applicants filed their appeal and (b) evidence

that we received several days later. See ante, at 2. But in

evaluating whether the District Court effectively refused to

issue injunctive relief, we must consider the facts as they

were known to that court at the time in question.2

——————

2 Moreover, it appears to me that the Court overstates what the Gov-

ernment attorney actually said during the April 18 hearing. The attor-

ney represented that it was “definitive” that “there are no flights to-

night,” and that “the people [he] spoke to were not aware of any plans for

flights tomorrow.” Tr. of Proceedings in J. G. G. v. Trump, ECF Doc. 93,

Cite as: 605 U. S. ____ (2025) 7

ALITO, J., dissenting

For these reasons, I agree with the unanimous Court of

Appeals panel that the District Court did not constructively

deny an application for an injunction. As the panel stated,

there was no reason to doubt the “diligence and ability” of

the District Court to act appropriately under the circum-

stances. Order in No. 25–10534 (CA5, Apr. 18, 2025), ECF

Doc. 14–1, p. 2. And his “failure to issue the requested rul-

ing” within the extraordinarily short period specified by the

applicants cannot reasonably be viewed as “an effective de-

nial of injunctive relief.” Id., at 4 (Ramirez, J., concurring).

II

Even if the District Court had denied the applicants’ mo-

tion, there would be no ground for reversal because the ap-

plicants failed to satisfy the requirements for emergency in-

junctive relief, one of which is a showing of likelihood of

success on the merits. Nken v. Holder, 556 U. S. 418, 434

(2009). And here, in order to obtain what the application

sought (and what the Court now provides)—i.e., relief for

the members of the class that applicants asked to have cer-

tified—applicants had to show that they were likely to es-

tablish that class relief is available in a habeas proceeding

and, if such relief is available, that the standard require-

ments for class certification could likely be met.3

——————

p. 15. Although the attorney also said that the Department of Homeland

Security “reserve[d] the right to remove people tomorrow,” he repeated

numerous times that no flights were planned for April 19. Id., at 26; see

also id., at 9, 15, 29–30. The attorney’s statements showed that there

was a possibility of future injury but not that such an injury was cer-

tainly impending. Clapper v. Amnesty Int’l, USA, 568 U. S. 398, 410

(2013).

3 The Court asserts that “courts may issue temporary relief to a puta-

tive class” without “decid[ing] whether a class should be certified.” Ante,

at 7. In support of that proposition, the Court cites to no precedent of

this Court. Instead, it cites to a treatise that provides no substantive

reasoning in support of the proposition. See ibid. (citing 2 W. Ru-

benstein, Newberg & Rubenstein on Class Actions §4:30 (6th ed. 2022

and Supp. 2024).

8 A. A. R. P. v. TRUMP

ALITO, J., dissenting

In my judgment, applicants were not likely to prevail on

either of those issues.

A

1

First, it is doubtful that class relief may be obtained in a

habeas proceeding. We have never so held, and it is highly

questionable whether it is permitted. Although habeas pro-

ceedings are classified as civil, the Federal Rules of Civil

Procedure apply only “to the extent that the practice in [ha-

beas] proceedings . . . previously conformed to the practice

in civil actions.” Rule 81(a)(4)(B); see also Rule 1. And in

accordance with Rule 81, we have acknowledged that some

Federal Rules are inapplicable in habeas.

In Harris v. Nelson, 394 U. S. 286 (1969), for example, we

held that Rule 33—concerning interrogatories—does not

apply in habeas proceedings because it has no analogue in

historical habeas practice and is a poor fit in a habeas pro-

ceeding. Id., at 292–298. Among other things, we noted

that the prevalence of fact-finding in habeas proceedings

was a relatively recent development, and that the specific

scope of Rule 33 was “ill-suited to the special problems and

character of [habeas] proceedings.” Id., at 296.

There are similar reasons to believe that Rule 23, which

authorizes class actions, is not applicable in habeas. Nei-

ther courts nor commentators have found historical support

for the practice. One commentator, writing in 1968, noted

that “no case has been found in which anything resembling

a class action was used in habeas corpus.” Note, Multiparty

Federal Habeas Corpus, 81 Harv. L. Rev. 1482, 1493 (1968).

——————

Even if the Court were correct, its position would not justify its deci-

sion to entirely sidestep the issue of certification. A court considering

whether to issue preliminary injunctive relief must consider whether the

movant is likely to succeed on the merits. And to consider whether a

request for classwide relief is likely to succeed on the merits, a court must

at least consider whether class certification is likely.

Cite as: 605 U. S. ____ (2025) 9

ALITO, J., dissenting

Two years later, another commentator observed that

“[c]lass actions for habeas corpus relief have rarely been at-

tempted, perhaps because Rule 81(a)(2) [now Rule 81(a)(4)]

seems to bar the application of the civil class action rule to

habeas proceedings.” Developments in the Law—Federal

Habeas Corpus, 83 Harv. L. Rev. 1038, 1170 (1970) (foot-

notes omitted). Indeed, there appears to be some historical

debate over whether even joinder was permitted in habeas

practice. Compare Note, 81 Harv. L. Rev., at 1494 (“The

issue of joinder was not explicitly ruled upon in any of these

cases, and no case has been found which expressly sanc-

tions the procedure”), with Developments in the Law—Fed-

eral Habeas Corpus, 83 Harv. L. Rev., at 1169 (arguing that

“the rules on joinder and consolidation apply under even the

most restrictive interpretation of Rule 81,” but citing con-

trary dicta found in at least one case (footnotes omitted)).

2

Despite this lack of historical support, some lower courts

have held that our decision in Harris sometimes permits

procedures that resemble those used in a class action. As

noted, Harris held that Rule 33, which concerns interroga-

tories, does not apply in habeas, but the Court also observed

that habeas courts “may fashion appropriate modes of pro-

cedure, by analogy to existing rules or otherwise in con-

formity with judicial usage,” when such modes of procedure

are necessary to “the habeas corpus jurisdiction and the

duty to exercise it.” 394 U. S., at 299. On this ground, Har-

ris held that a habeas court may use its authority under the

All Writs Act, 28 U. S. C. §1651, to fashion a procedure re-

sembling an interrogatory to the extent that such an instru-

ment is “needed” by the court to “perform [its] duty” to

“summarily hear and determine the facts, and dispose of

the matter as law and justice require.” 394 U. S., at 299–

300 (internal quotation marks omitted).

Based on this discussion in Harris, the Second Circuit

10 A. A. R. P. v. TRUMP

ALITO, J., dissenting

held that while Federal Rule of Civil Procedure 23 does not

itself apply in habeas, “a multi-party proceeding similar to”

a Rule 23 class action is sometimes allowed. United States

ex rel. Sero v. Preiser, 506 F. 2d 1115, 1125 (CA2 1974). And

it concluded that this procedure was appropriate in “the un-

usual circumstances” present in the case at hand. Ibid.; see

also Bijeol v. Benson, 513 F. 2d 965, 968 (CA7 1975).

This reading of Harris is highly questionable. Where a

particular rule does not apply in habeas, a court cannot cir-

cumvent that limitation by simply saying that it is import-

ing the same feature under a different rubric. Harris con-

cluded that something like an interrogatory was allowed

because it was needed under the circumstances to help the

habeas court carry out a duty clearly imposed by law, that

is, to “ ‘determine the facts’ ” that are material to the claim

made by the petitioner who was before the court. 394 U. S.,

at 299 (quoting 28 U. S. C. §2243).

The situation here is different. No provision of law im-

poses on a habeas court the duty to determine facts or de-

cide legal issues regarding parties who are not before the

court. And as a general matter, the class action device is

uniquely “ill-suited” for habeas proceedings, id., at 296,

which often turn on individualized and fact-specific deter-

minations regarding the confinement of a specific prisoner.

B

Even if something resembling a class action could be used

in a habeas proceeding, it is very questionable whether the

requirements for class certification could be met in this

case. Rule 23(a)(3) provides that named plaintiffs may sue

as representatives of a class “only if,” among other things,

“the claims or defenses of the representative parties are

typical of the claims or defenses of the class.” And when a

court certifies a class, the court is supposed to define the

precise “claims” that will be adjudicated on a class-wide ba-

sis. See Rule 23(c)(1)(B). That ensures that the only claims

Cite as: 605 U. S. ____ (2025) 11

ALITO, J., dissenting

that are adjudicated in a class action are those that the

class brings in common and those for which the named

plaintiffs are “typical” representatives of the class. See

General Telephone Co. of Northwest v. EEOC, 446 U. S. 318,

330 (1980) (“The typicality requirement is said to limit the

class claims to those fairly encompassed by the named

plaintiff ’s claims”).

Here, however, the main interim relief sought on behalf

of the putative class—adequate notice of plans for removal

under the AEA and an opportunity to contest such removal

in court, see Application 17–18; Reply 5–7—is not needed

by either A. A. R. P. or W. M. M., who already have a pend-

ing habeas proceeding and a promise that they will not be

removed until that proceeding concludes. For this reason,

their situation differs critically from that of many of the pu-

tative class members since they have no personal stake in

how the court resolves the question of interim relief for the

putative class members.

The Court responds to this problem by suggesting that a

class action defendant may not “defeat class treatment, if it

is otherwise proper, by promising as a matter of grace to

treat named plaintiffs differently.” Ante, at 7 (emphasis

added). But the Court provides no analysis suggesting that

class certification here is “otherwise proper,” and instead

asserts that it can ignore the question of class certification

at this preliminary stage. Ibid. And, in any event, the rec-

ord does not suggest that the Government is treating the

named plaintiffs differently “as a matter of grace.” Ibid.

Rather, it is doing so pursuant to its general policy against

removing AEA detainees when they have a pending habeas

petition. See Opposition to Emergency Application 2 (“the

government has agreed not to remove pursuant [to] the

AEA those AEA detainees who do file habeas claims”).

C

We have told district courts that they may certify a class

12 A. A. R. P. v. TRUMP

ALITO, J., dissenting

only after conducting a “ ‘rigorous analysis’ ” of the question.

Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 351 (2011)

(quoting General Telephone Co. of Southwest v. Falcon, 457

U. S. 147, 161 (1982)). On April 18, the District Court had

no time to engage in such analysis, and as a result, it cannot

be said that the court abused its discretion in failing to con-

clude that applicants’ were likely to prevail on their class-

action arguments. Cf. University of Tex. v. Camenisch, 451

U. S. 390, 393–394 (1981).

The District Court has since had time to conduct the “rig-

orous analysis” that our precedents require, and has con-

cluded that class certification would be improper here. Or-

der in No. 1:25–cv–59 (ND Tex., May 9, 2025), ECF Doc. 67.

That development makes the relief issued by the Court to-

day all the more extraordinary. Purporting to exercise its

appellate jurisdiction, the Court issues “preliminary relief ”

to a putative class that the District Court has explicitly re-

fused to certify, and it does so without providing any sub-

stantive analysis suggesting that the District Court’s anal-

ysis of the class certification issue was incorrect.

Instead of substantively engaging with the District

Court’s order, the Court asserts that the order makes no

difference because it “primarily addressed the detainees’

ability to challenge the validity of AEA removal on a class-

wide basis,” whereas “[t]he application before this Court

seeks only to vindicate notice rights.” Ante, at 6, n. *. But

the District Court’s order did address the notice question.

In addition to explaining why the applicants cannot pursue

their final merits claims as a class action, the order explains

at length why the applicants’ claims regarding notice rights

also cannot proceed on a class basis. ECF Doc. 67, at 29–

31, 33, 38–39. Among other things, the District Court ob-

served that “due process is by its very nature individual-

ized,” id., at 33, a proposition plainly supported by our prec-

edents. See Jennings v. Rodriguez, 583 U. S. 281, 314

Cite as: 605 U. S. ____ (2025) 13

ALITO, J., dissenting

(2018) (“Due process is flexible, we have stressed repeat-

edly, and it calls for such procedural protections as the par-

ticular situation demands” (internal quotation marks and

alteration omitted)).

In any event, the District Court also offered several gen-

eral reasons why class relief would be inappropriate here,

and these apply equally to the applicants’ claims regarding

notice rights. See ECF Doc. 67, at 35–36, 39–45. The Court

today issues temporary relief without engaging with any of

that analysis. And, what’s more, it asks the Fifth Circuit to

finally adjudicate the notice rights of members of the puta-

tive class without asking that court to do its own analysis

regarding whether class certification as to those claims

would be appropriate. Ante, at 8. Clearly, the Court would

prefer to ignore the important step of class certification and

skip directly to the adjudication of the class members’

rights. The Federal Rules do not permit such a shortcut.

III

Instead of merely ruling on the application that is before

us—which asks for emergency relief pending appeal—the

Court takes the unusual step of granting certiorari before

judgment, summarily vacating the judgment below dis-

missing the applicants’ appeal, and remanding the case to

the Court of Appeals with directions regarding the issues

that court should address. From the Court’s order, it is not

entirely clear whether the Court has silently decided issues

that go beyond the question of interim relief. (I certainly

hope that it has not.) But if it has done so, today’s order is

doubly extraordinary. Granting certiorari before a court of

appeals has entered a judgment is a sharp departure from

usual practice, but here neither the Court of Appeals nor

the District Court has decided any merits questions.

We have said more times than I care to remember that

“we are a court of review, not first view.” Cutter v. Wil-

kinson, 544 U. S. 709, 718, n. 7 (2005). Even on the Court’s

14 A. A. R. P. v. TRUMP

ALITO, J., dissenting

reading of what happened below, all that the District Court

and the Court of Appeals decided was that the applicants

were not entitled to temporary injunctive relief. If the

Court has gone beyond that question, it has blazed a new

trail. It has plucked a case from a district court and decided

important issues in the first instance. To my eyes, that

looks far too much like an expansion of our original juris-

diction.

I must therefore respectfully dissent.