A federal judge in Portland ruled Tuesday that the government had illegally arrested a Venezuelan man in Portland under the Alien Enemies Act using “shoot first and ask questions later” tactics that violated the basic rule of law.
U.S. District Judge Mustafa T. Kasubhai particularly criticized what he said were false suspicions about tattoos on the arms of Diego Armando Morales Jiminez that federal agents cited among the reasons for questioning him and later detaining him in April.
The tattoos showed Morales Jiminez’s children and their names, including twins who had died shortly after birth.
How could those represent allegiance to the notorious Venezuelan Tren de Aragua gang, a U.S-designated foreign terrorist organization, Kasubhai asked government lawyers.
“It is hard to fathom that these tattoos could be code for anything other than a parent’s love for a child,” the judge said.
The tattoos and the fact that Morales Jiminez was born in Aragua proved nothing, Kasubhai said.
He found that Morales Jiminez’s arrest violated the “absolute sanctity” of the Fifth Amendment right to due process.
His decision came on the same day a federal judge in Pennsylvania became the first in the nation to allow the Trump administration to deport Venezuelans whom it considers members of Tren de Aragua under the 18th century Alien Enemies Act but ruled that they must be given 21 days’ notice in their native language. That ruling veered from earlier decisions by federal judges in New York, Colorado and Texas.
In March, the Trump administration had more than 130 Venezuelans removed from the U.S. to a prison in El Salvador using the Alien Enemies Act, a war power he’s used to deport Venezuelans he claims are part of a violent criminal gang under a March 14 proclamation he signed that said the gang was mounting an “incursion” into the United States.
In a declaration to the court, Morales Jiminez said he came to the U.S. “to be safe from the persecution we faced in Venezuela. I have followed all of the laws since I arrived.”
He said he feared being separated from his wife, now seven months pregnant.
“I just want the opportunity to live a safe and peaceful life here with my wife and our daughter who will soon be born,” he said. “I ask the court to protect me from unjust detention and deportation.”
FLED PERSECUTION
Morales Jiminez, now 34, came to the United States in March 2024 seeking asylum after he had been involved in political protests in Venezuela.
He said he was “beaten and threatened” and labeled by the government as a “traitor” to the Maduro regime and decided to leave the country.
He and his live-in partner were detained March 30, 2024, at the El Paso, Texas, border by U.S. Customs and Border Patrol officers and separated. Several days later, he was released with an electronic ankle monitor, reunited with his partner and the two traveled to the Portland area, he said in his sworn declaration.
A local assistance program helped them secure a hotel room with other recently arrived immigrants and he reported to the Immigration and Customs Enforcement office in Portland as directed.
He said he was released on his own recognizance the next day with instructions to report to the immigration office in about a year. He was placed in an intensive supervision program, with regular reporting requirements, according to his declaration.
In October, he received a call to appear at the supervision program office and was met by ICE and FBI agents who asked if he was a member of Tren de Aragua, he said.
He was shown photos of other men and asked if he had information on them and then asked to remove his shirt to check for tattoos, he said.
He has “Sebastian” – the name of his son – down the length of one arm. On the other arm, he has a drawing of his twins who died, a boy and girl, amid a heart and star with the “Melissa” above and “Maximiliano.”
He wasn’t held and that same month, he was allowed to remove his ankle monitor and instead told to record his location using his cellphone and attend periodic virtual or phone interviews, he said.
He was called back for another interview in December, and again questioned by ICE about any ties to the Tren de Aragua gang, he said.
Morales Jiminez and his partner married in January, and he formally applied for asylum in February. The request is pending in immigration court in Portland, with a June 2026 date for a hearing.
He and his wife now rent a home in Portland with his sister-in-law and her two children.
‘SURPRISE’ CALL
On April 7, Morales Jimenez received what his lawyer described as a “surprise” call from Homeland Security officials, telling him he needed to check in with ICE two days later.
They summoned him to the Portland ICE office on April 9 and arrested him without warning and without any change in his circumstances, said his lawyer, Jordan Elizabeth Cunnings.
A Homeland Security agent told another lawyer that Morales Jiminez was “on a list” and offered no other explanation for his detention, Cunnings said.
In court Tuesday, the judge pressed federal attorneys about the reason for the arrest.
“What list? What does that mean?” Kasubhai asked.
Assistant U.S. Attorney Benjamin T. Hickman said multiple law enforcement agencies had initiated an investigation of Morales Jiminez during the Biden administration about any possible connections to Tren de Aragua.
Homeland Security Investigations agent Stephen Grimm then interviewed Morales Jiminez based on “instructions from his supervisors,” Hickman said.
“Why him?” the judge pressed.
Because Morales Jiminez was from Aragua, there was a desire to know if he was affiliated with anyone from the Tre de Aragua gang and photograph his tattoos, Hickman said. “Special Agent Grimm was up front about that,” he said.
As for Morales Jiminez’ arrest on April 9, Hickman said that was “because of agency enforcement priorities. I am not privy to the deliberations .. or where that came from,” he said.
Immigration authorities planned to transfer Morales Jiminez to the detention center in Tacoma under the Alien Enemies Act, Cunnings said.
But Morales Jiminez, fearing he would be shipped to El Salvador like the Trump administration had done with more than 100 other Venezuelans suspected of gang ties, had another lawyer seek a temporary restraining order to bar his transfer out of state. It was issued just hours before Morales Jimenez would have been transported to Tacoma, Cunnings said.
Because Oregon has no ICE center, immigration officials released Morales Jiminez, they said.
ADDITIONAL PROTECTIONS
In court Tuesday, Cunnings argued that the government has offered no assurances that it won’t arrest Morales Jiminez again and she sought a further court protection for her client.
Hickman, the government lawyer, countered that U.S. District Court doesn’t have jurisdiction because Morales Jiminez could have sought relief at a bond hearing if he had been sent to the Northwest Detention Center in Tacoma.
Cunnings called that response “illogical,” noting that the detention center offers no meaningful bond hearings, which has led to a separate class-action suit in Washington.
The judge continued to press the government about why Morales Jiminez had been arrested last month.
“Are we clear these tattoos do not indicate membership in a gang?” Kasubhai asked Hickman.
Hickman conceded: “That is the conclusion” and said the government has no plans to rearrest Morales Jimenez under the Alien Enemies Act unless his circumstances change. As a result, Hickman argued that no further court action was necessary.
Kasubhai disagreed.
Ruling from the bench, the judge found that Morales Jiminez appropriately raised his claims in U.S. District Court because no administrative process is in place to challenge his potential rearrest or detention.
Kasubhai found no evidence that Morales Jiminez is a member of the Venezuelan gang or any gang.
He said Jiminez doesn’t present a danger or flight risk, noting he responded to federal agents in early April and voluntarily reported to the ICE office in Portland as requested.
The judge barred the government from arresting Morales Jiminez or detaining him without probable cause or removing him from Oregon without 21 days’ notice so he could have time to challenge any future action.
“We think it’s a step in the right direction in affording additional protections,” Cunnings said afterward.
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