D.B.U. v. Trump: Twenty-One Days' Notice in the Detainee’s Language
- Citation
- D.B.U. v. Trump, No. 1:25-cv-01163 (D. Colo. May 6, 2025) (Sweeney, J.); 10th Cir. stay denied Apr. 29, 2025
- Court
- U.S. District Court for the District of Colorado
- Judge
- Hon. Charlotte N. Sweeney
- Statute
- Alien Enemies Act, 50 U.S.C. § 21; 28 U.S.C. § 2241; Fifth Amendment Due Process Clause
- Holding
- Proclamation likely unlawful (AEA requires “military action” by a “foreign nation or government”); preliminary injunction issued; class certified; 21 days' notice in detainee’s language required before any AEA removal.
The District of Colorado’s contribution to the Alien Enemies Act docket is short, sharp, and unusually procedurally clean. On April 12, 2025, the ACLU filed habeas on behalf of two Venezuelan men held at the Aurora ICE Processing Center. By April 14, Judge Charlotte Sweeney had entered a temporary restraining order. By April 29, a Tenth Circuit motions panel had denied the government’s emergency stay. By May 6, the district court had certified a class, granted a preliminary injunction, and issued the most demanding notice rule of any AEA decision: twenty-one days' written notice, in the detainee’s language, before any AEA removal.
The merits analysis
Judge Sweeney’s reading of the AEA’s “invasion or predatory incursion” clause emphasizes the statutory phrase “by any foreign nation or government.” That phrase, the court reasoned, requires more than designation as a Foreign Terrorist Organization; it requires action by a sovereign or quasi-sovereign actor. A criminal organization, even one designated as terrorist, even one with operational ties to a sovereign, is not itself a foreign nation or government. The court found the proclamation likely failed at this threshold: there was no record evidence sufficient to find Tren de Aragua — as opposed to its individual members — was acting as the proxy of any state.
The notice rule
Where D.B.U. went furthest was on the procedural relief. Anticipating that the Supreme Court would eventually require notice and an opportunity to challenge designation (as it did, ten days later, in A.A.R.P.), Judge Sweeney specified what such notice had to contain and how it had to be delivered. Twenty-one days. In a language the detainee actually understood. With access to counsel and an explanation of how to file a habeas petition. The 21-day standard has since been adopted by the Western District of Pennsylvania, even in its substantively pro-government ruling, and is widely treated as the practical floor for AEA notice.
“The Government’s position would permit secret removals to a foreign prison on twenty-four hours’ notice. The Constitution permits no such thing.”
The Tenth Circuit’s role
The Tenth Circuit’s April 29 denial of the government’s emergency stay is itself worth noting. The panel (Judges Hartz, Phillips, and Carson) concluded the government had not made a strong showing of likelihood of success on the merits and had not demonstrated the kind of irreparable harm necessary to warrant emergency relief. The order is brief but, coming from a circuit not generally hospitable to immigrant-side claims, signaled that the government’s legal position was not viewed as obviously sound even by judges normally inclined toward executive deference.
Significance
D.B.U. matters for two reasons. First, it shows how quickly a federal court can move when the executive’s own pace forces the issue: TRO, class certification, preliminary injunction, and circuit-court affirmance, all within thirty days. Second, the 21-day notice rule has become the practical baseline for AEA removal notice nationally, embedded into operational ICE practice in any district where an injunction is in place. The Supreme Court has not yet specified the precise duration the Constitution requires, but it has now twice approved the general framework Judge Sweeney established here.
Filed under The Alien Enemies Act. Published May 6, 2025.