A.A.R.P. v. Trump

PRELIMINARY PRINT Volume 605 U. S. Part 1 Pages 91–113

OFFICIAL REPORTS OF

THE SUPREME COURT May 16, 2025

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, [email protected], of any typographical or other formal errors.

OCTOBER TERM, 2024 91 Syllabus

A. A. R. P. et al. v. TRUMP, PRESIDENT OF THE UNITED STATES, et al. on application for injunction No. 24A1007. Decided May 16, 2025 The President invoked the Alien Enemies Act (AEA) to remove Venezue- lan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization. See Presidential Proclamation No. 10903, 90 Fed. Reg. 13033. Applicants are two detainees identifed as TdA members and a putative class of similarly situated detainees in the Northern District of Texas. The detainees sought emergency injunc- tive relief against summary removal under the AEA.

On April 17, 2025, the District Court denied the detainees' motion for a temporary restraining order (TRO). Hours later, putative class members were served notices of AEA removal and told they would be removed imminently. The detainees fled an emergency TRO motion and, when the District Court did not rule, appealed to the Fifth Circuit and applied to this Court for temporary injunctive relief. The Govern- Page Proof Pending Publication ment asserted the right to remove putative class members as soon as the next day. The Fifth Circuit dismissed the appeal for lack of juris- diction. The Court now construes the application as a petition for writ of certiorari from the Fifth Circuit's decision.

Held: The Fifth Circuit erred in dismissing the appeal for lack of jurisdic- tion. Appellate courts have jurisdiction to review interlocutory orders that have “the practical effect of refusing an injunction.” Carson v. American Brands, Inc., 450 U. S. 79, 84. A district court's inaction in the face of extreme urgency and high risk of irreparable consequences may constitute a constructive denial of injunctive relief. Here, the Dis- trict Court's inaction for over 14 hours had the practical effect of refus- ing an injunction to detainees facing imminent removal.

The Fifth Amendment entitles aliens to due process in removal pro- ceedings. Due process requires notice that is “reasonably calculated” to inform interested parties and affords “a reasonable time” to respond.

Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314.

AEA detainees must receive adequate notice that they are subject to removal “within a reasonable time and in such a manner as will allow them to actually seek habeas relief ” before removal. Trump v. J. G. G., 604 U. S. 670, 673. Under the circumstances, notice roughly 24 hours before removal, without information about how to exercise due process rights, does not satisfy constitutional requirements. The Court re- 92 A. A. R. P. v. TRUMP Per Curiam mands for determination of what specifc notice is constitutionally required.

The Court may issue temporary relief to a putative class to preserve its jurisdiction without deciding whether formal class certifcation is ap- propriate. Named applicants and putative class members are entitled to constitutionally adequate notice prior to removal. Although putative class members may take different steps to protect their interests, the notice to which they are entitled is the same. And a class action de- fendant may not defeat class treatment, if otherwise proper, by simply promising to treat named plaintiffs differently.

Certiorari and temporary injunctive relief granted; judgment vacated and remanded.

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 Page Proof Pending Publication are two detainees identifed as members of TdA and a puta- tive 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 detainees' 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 detainees 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 emer- Cite as: 605 U. S. 91 (2025) 93 Per Curiam gency TRO 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' allegations on April 18 only at an evening hearing before the District 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 Page Proof Pending Publication all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward re- moving detainees under the AEA—including transporting them from their detention facility to an airport and later re- turning 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 Govern- ment may have argued, as it has previously argued, that no U. S. court had jurisdiction to order relief. See Application 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 consider the application. 604 U. S. 1251 (2025). We invited the Gov- ernment 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 94 A. A. R. P. v. TRUMP Per Curiam pending appeal as premature, on the ground that the detain- ees “gave the [district] court only 42 minutes to act.” No. 25−10534, ECF Doc. 14, p. 2. We now construe the applica- tion 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 pro- ceedings, vacate the judgment of the Fifth Circuit, and re- mand for further proceedings.

II The Fifth Circuit erred in dismissing the detainees' appeal for lack of jurisdiction. Appellate courts have jurisdiction 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 inaction in the face of extreme urgency and a high risk of “serious, perhaps irreparable,” consequences may have the effect of refusing Page Proof Pending Publication 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 injunction to detainees facing an imminent threat of severe, irreparable harm. Accord- ingly, 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. 670, 673 (2025) (per curiam) (internal quo- tation marks omitted). “Procedural due process rules are meant to protect” against “the mistaken or unjustifed depri- vation 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 “without opportu- nity, at some time, to be heard.” The Japanese Immigrant Case, 189 U. S. 86, 101 (1903). Due process requires notice that is “reasonably calculated, under all the circumstances, Cite as: 605 U. S. 91 (2025) 95 Per Curiam to apprise interested parties” and that “afford[s] a reasonable time . . . to make [an] appearance.” Mullane v. Central Han- over Bank & Trust Co., 339 U. S. 306, 314 (1950). Accord- ingly, in J. G. G., this Court explained—with all nine Justices agreeing—that “AEA detainees must receive notice . . . that they are subject to removal 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 673. In order to “actually seek habeas relief,” a detainee must have suffcient time and information to reasonably be able to contact counsel, fle a petition, and pursue appro- priate 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 Page Proof Pending Publication 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 indefnite detention, see Appli- cation for Injunction 11. The detainees' interests at stake are accordingly particularly weighty. Under these circum- stances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to con- test that removal, surely does not pass muster. But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the frst instance the precise process necessary to satisfy the Constitution 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 jurisdiction while the question of what notice is due is adjudicated. See post, at 112 (Alito, J., dissenting). We did not on April 19— and do not now—address the underlying merits of the par- 96 A. A. R. P. v. TRUMP Per Curiam ties' claims regarding the legality of removals under the AEA. We recognize the signifcance of the Government's national security interests as well as the necessity that such interests be pursued in a manner consistent with the Consti- tution. In light of the foregoing, lower courts should ad- dress AEA cases expeditiously.

III The dissent disputes both the Court's jurisdiction and the availability of classwide relief. We do not fnd its reason- ing 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 102−103 (Alito, J., dissenting), but exigent circumstances may impose practical constraints. Preliminary relief is “custom- Page Proof Pending Publication arily 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. 192, 200–201 (2025) (quoting Uni- versity of Tex. v. Camenisch, 451 U. S. 390, 395 (1981)). The purpose of such relief is “merely to preserve the relative po- sitions of the parties” pending further proceedings. Lackey, 604 U. S., at 200 (quoting Camenisch, 451 U. S., at 395).

In this case, the record before the District Court, although limited, indicated that removals of putative class members were likely imminent. Contra, post, at 103−105 (Alito, J., dissenting). The detainees attached four declarations to their emergency motion for a TRO. In one, for example, an attorney relayed a detainee's report that immigration off- cers “had informed them that they will be deported either today or tomorrow.” ECF Doc. 30−1. In a second, a non- proft director described conversations with family members of detainees and linked to a video of detainees holding no- tices of removal as evidence that detainees “were being re- moved.” ECF Doc. 30−2, p. 1.

Cite as: 605 U. S. 91 (2025) 97 Per Curiam 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] al- ready 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 juris- diction pending appeal.* Named applicants A. A. R. P. and Page Proof Pending Publication W. M. M. assert that they are at imminent risk of being clas- sifed as alien enemies and removed from the United States, but the record does not indicate that they have received 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 adequate notice *We note that the District Court recently denied class certifcation 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 primarily addressed the detainees' ability to challenge the validity of AEA removal 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 111 (Alito, J., dissenting) (citing ECF Doc. 67, pp. 29−31, 33, 38−39), the District Court's concerns as to the propriety of classwide relief focused on con- siderations downstream of the initial notice necessary for detainees to raise any substantive claims against AEA removal, see id., at 29−31, 33, 38−39.

98 A. A. R. P. v. TRUMP Per Curiam prior to any removal, in order to pursue appropriate relief.

Although the putative class members may ultimately take different steps to protect their own interests in response to such notice, the notice to which they are entitled is the same.

And because courts may issue temporary relief to a putative class, see 2 W. Rubenstein, Newberg & Rubenstein on Class Actions § 4:30 (6th ed. 2022 and Supp. 2024), we need not decide whether a class should be certifed as to the detainees' due process claims in order to temporarily enjoin the Gov- ernment 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 Page Proof Pending Publication 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 673, must itself be vindicated through individual habeas petitions, somehow by plaintiffs who have not re- ceived notice. * * * The application for an injunction pending further proceed- ings is granted. The motion for leave to fle a supplemental appendix under seal is also granted. Additionally, appli- cants suggested this Court treat the application as a 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 likelihood of success on the merits, as to the named plaintiffs' underlying habeas Cite as: 605 U. S. 91 (2025) 99 Kavanaugh, J., concurring claims that the AEA does not authorize their removal pursu- ant 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 removal. 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 disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the peti- tion for a writ of certiorari be denied, this order shall termi- nate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

The Government may remove the named plaintiffs or puta- tive class members under other lawful authorities.

It is so ordered.

Justice Kavanaugh, concurring.

Page Proof Pending Publication 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 be- fore they are in fact removed. The underlying legal ques- tions 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 conficting rul- ings 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 Execu- tive Branch has represented that this case is important for 100 A. A. R. P. v. TRUMP Alito, J., dissenting America's national security and that it is “critical to remove TdA members subject to the Proclamation quickly.” Appli- cation To Vacate Orders in Trump v. J. G. G., No. 24A931 (Mar. 28, 2025), p. 37; see Opposition to Emergency Applica- tion 3, 5. For their part, the detainees have explicitly re- quested that the Court move fast and grant certiorari before judgment. See Reply 4.

The circumstances call for a prompt and fnal 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 fnal resolution of the critical legal issues. Rather, consistent with the Executive Branch's request for expedition—and as the detainees them- selves urge—I would grant certiorari, order prompt briefng, hold oral argument soon thereafter, and then resolve the legal issues.

Justice Alito, with whom Justice Thomas joins, Page dissenting. Proof Pending Publication I cannot join the decision of the Court. First and most important, we lack jurisdiction and therefore have no author- ity to issue any relief. Second, even if we had such author- ity, the applicants have not satisfed the requirements for the issuance of injunctive relief pending appellate review.

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 Mc- Cardle, 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 Cite as: 605 U. S. 91 (2025) 101 Alito, J., dissenting 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 peti- tioners, A. A. R. P. and W. M. M., took an appeal from a District Court order that refused to issue “an injunction.”

§ 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 ur- gently needed. See ante, at 94.

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 Page Proof Pending Publication 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 certifed, (c) the court took the entirely reasonable position that it would wait for the Government to respond to the applicants' request for a temporary restraining order (TRO) before acting, (d) the court set a very short deadline for the fling of the Govern- ment's response, and (e) the court was working diligently on the diffcult issues presented by the applicants' request for relief for themselves and the members of the putative class.

The Court asserts that the District Court failed to act “for hours and 28 minutes,” ante, at 94, 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 102 A. A. R. P. v. TRUMP Alito, J., dissenting District Court has since correctly noted, judges are gener- ally not permitted to consider such ex parte communications.

See ECF Doc. 47, at 1–2 (citing Code of Conduct for Federal Judges, Canon 3(A)(4)); see also Fed. Rule Civ. Proc. 65(b)(1).

So the judge issued an electronic order admonishing the at- torneys and stating that “[t]o the extent either party seeks emergency relief, it may fle a motion to do so. If an emer- gency motion is fled, the opposing party shall have 24 hours to fle a response.” ECF Doc. 29.

Thus, when the attorneys for A. A. R. P. and W. M. M. fled 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 fle 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 in- Page Proof Pending Publication formed the court that they would fle an appeal if the District 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 fled their appeal at 3:02 p.m., just 133 min- utes 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 jus- tifed under the circumstances, delivering such an ultimatum to a district court judge (“Act on my motion on a complex matter within 42 or 133 minutes or I'll fle an appeal and divest you of jurisdiction”) represented a very stark depar- ture from what is usually regarded as acceptable practice.

Faced with applicants' extraordinary demand, the District Court proceeded in an entirely reasonable manner. The Court characterizes the District Court's behavior during the period in question as “inaction,” ante, at 94, but in my judg- ment, 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 Cite as: 605 U. S. 91 (2025) 103 Alito, J., dissenting possible.” ECF Doc. 41, p. 4. The judge explained that he had not yet ruled because he could not “shirk [his] responsi- bility to decide . . . complicated issues 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 government fled 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 relief without adequate consideration of the relevant issues. See Trump v. J. G. G., 604 U. S. 670 (2025) (per curiam); Depart- ment of Education v. California, 604 U. S. 650 (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 dif- Page Proof Pending Publication fcult questions and that was supported by factual submis- sions 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 94 (internal quotation marks omitted). But it is important not to confate 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 104 A. A. R. P. v. TRUMP Alito, J., dissenting that date) included no concrete evidence that any removals were so imminent that a ruling had to be made immediately.

The applicants' factual support consisted of six sworn decla- rations and a photograph that the applicants asserted was an image of a notice of removal. See App. to Application 32– 37, 56–65. But neither the declarations nor the photograph showed “extreme urgency.” Ante, at 94.

The declarations certainly did not show that action was urgently needed to protect A. A. R. P. or W. M. M. The Government had represented in District Court that it would not remove either of those men—the only parties who were indisputably 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 imminent removal. App. to Application 32–37. Indeed, the declara- tions concerning them were signed on April 15, prior to the Government's representation that they would not be re- Page Proof Pending Publication moved while their habeas petitions were pending. As a re- sult, the declarations were outdated and provided no support for the claim that either A. A. R. P. or W. M. M. was threat- ened 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 uncertifed 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 Ene- mies 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 Govern- ment later confrmed in its flings before this Court that it “has agreed not to remove pursuant [to] the AEA those AEA detainees who do fle habeas claims,” including the named applicants. Opposition to Emer- gency Application 2.

Cite as: 605 U. S. 91 (2025) 105 Alito, J., dissenting class. And of the four declarations concerning those individ- uals, only one said anything about when removal might hap- pen. In that declaration, a lawyer swore that she spoke on the phone with an unidentifed Venezuelan man who said that “ICE had informed them that they will be deported either today or tomorrow to Venezuela.” Id., at 56. In other words, the most specifc piece of evidence in the record was a double-hearsay statement that cannot be traced back to any specifc government offcial. Outside of that, none of the remaining declarations said anything about imminent re- moval. They merely stated that certain aliens were receiv- ing deportation notices, but it was not claimed that these notices specifed when removal might occur. See id., at 57– (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 En- emies Act,” which the applicants termed a removal notice, likewise said nothing about the time of removal. See id., at Page Proof Pending Publication 64–65. Other than these declarations, the court was left with unsupported attorney assertions in the application itself.

Ignoring these defciencies 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 fled their appeal and (b) evidence that we received several days later. See ante, at 93. 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 Moreover, it appears to me that the Court overstates what the Govern- ment attorney actually said during the April 18 hearing. The attorney represented that it was “defnitive” that “there are no fights tonight,” and that “the people [he] spoke to were not aware of any plans for fights tomorrow.” Tr. of Proceedings in J. G. G. v. Trump, ECF Doc. 93, p. 15.

106 A. A. R. P. v. TRUMP 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 specifed 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 Page Proof Pending Publication sought (and what the Court now provides)—i.e., relief for the members of the class that applicants asked to have certi- fed—applicants had to show that they were likely to estab- lish that class relief is available in a habeas proceeding and, if such relief is available, that the standard requirements for class certifcation could likely be met.3 Although the attorney also said that the Department of Homeland Secu- rity “reserve[d] the right to remove people tomorrow,” he repeated nu- merous times that no fights 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 certainly impending. Clapper v. Amnesty Int'l, USA, 568 U. S. 398, 410 (2013).

The Court asserts that “courts may issue temporary relief to a putative class” without “decid[ing] whether a class should be certifed.” Ante, at 98. In support of that proposition, the Court cites to no precedent of this Court. Instead, it cites to a treatise that provides no substantive reason- ing in support of the proposition. See ibid. (citing 2 W. Rubenstein, New- berg & Rubenstein on Class Actions § 4:30 (6th ed. 2022 and Supp. 2024).

Even if the Court were correct, its position would not justify its decision to entirely sidestep the issue of certification. A court considering Cite as: 605 U. S. 91 (2025) 107 Alito, J., dissenting In my judgment, applicants were not likely to prevail on either of those issues.

A 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 classifed 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 ft in a habeas pro- Page Proof Pending Publication ceeding. Id., at 292–298. Among other things, we noted that the prevalence of fact-fnding in habeas proceedings was a relatively recent development, and that the specifc scope of Rule 33 was “ill-suited to the special problems and charac- ter of [habeas] proceedings.” Id., at 296.

There are similar reasons to believe that Rule 23, which authorizes class actions, is not applicable in habeas. Neither 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. Two years later, another commentator observed that “[c]lass ac- tions for habeas corpus relief have rarely been attempted, 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 certifcation is likely.

108 A. A. R. P. v. TRUMP Alito, J., dissenting 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) (footnotes omit- ted). 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 join- der was not explicitly ruled upon in any of these cases, and no case has been found which expressly sanctions the proce- dure”), with Developments in the Law—Federal Habeas Corpus, 83 Harv. L. Rev., at 1169 (arguing that “the rules on joinder and consolidation apply under even the most restric- tive interpretation of Rule 81,” but citing contrary dicta found in at least one case (footnotes omitted)).

Despite this lack of historical support, some lower courts Page Proof Pending Publication have held that our decision in Harris sometimes permits pro- cedures that resemble those used in a class action. As noted, Harris held that Rule 33, which concerns interrogato- ries, does not apply in habeas, but the Court also observed that habeas courts “may fashion appropriate modes of proce- dure, by analogy to existing rules or otherwise in conformity with judicial usage,” when such modes of procedure are nec- essary to “the habeas corpus jurisdiction and the duty to exercise it.” 394 U. S., at 299. On this ground, Harris held that a habeas court may use its authority under the All Writs Act, 28 U. S. C. § 1651, to fashion a procedure resembling an interrogatory to the extent that such an instrument 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 held that while Federal Rule of Civil Procedure 23 does not itself apply in habeas, “a multi-party proceeding similar to” a Rule Cite as: 605 U. S. 91 (2025) 109 Alito, J., dissenting 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 importing the same feature under a different rubric. Harris con- cluded that something like an interrogatory was allowed be- cause it was needed under the circumstances to help the ha- beas 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 decide legal issues regarding parties who are not before the court.

Page Proof Pending Publication And as a general matter, the class action device is uniquely “ill-suited” for habeas proceedings, 394 U. S., at 296, which often turn on individualized and fact-specifc determinations regarding the confnement of a specifc 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 certifcation could be met in this case.

Rule 23(a)(3) provides that named plaintiffs may sue as rep- resentatives 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 certifes a class, the court is supposed to defne the precise “claims” that will be adjudicated on a class-wide basis. See Rule 23(c)(1)(B). That ensures that the only claims that are adjudicated in a class action are those that the class brings in common and those for which the named plaintiffs 110 A. A. R. P. v. TRUMP Alito, J., dissenting are “typical” representatives of the class. See General Tele- phone 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 pending habeas proceeding and a promise that they will not be re- moved 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 Page Proof Pending Publication is otherwise proper, by promising as a matter of grace to treat named plaintiffs differently.” Ante, at 98 (emphasis added). But the Court provides no analysis suggesting that class certifcation here is “otherwise proper,” and instead as- serts that it can ignore the question of class certifcation at this preliminary stage. Ibid. And, in any event, the record 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 govern- ment has agreed not to remove pursuant [to] the AEA those AEA detainees who do fle habeas claims”).

C We have told district courts that they may certify a class only after conducting a “ `rigorous analysis' ” of the question.

Cite as: 605 U. S. 91 (2025) 111 Alito, J., dissenting 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 certifcation would be improper here.

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

67. That development makes the relief issued by the Court today 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 refused to certify, and it does so without providing any Page Proof Pending Publication substantive analysis suggesting that the District Court's analysis of the class certifcation issue was incorrect.

Instead of substantively engag ing 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 97, n. But the District Court's order did address the notice question.

In addition to explaining why the applicants cannot pursue their fnal 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 observed that “due process is by its very nature individual- ized,” id., at 33, a proposition plainly supported by our prece- dents. See Jennings v. Rodriguez, 583 U. S. 281, 314 (2018) (“Due process is fexible, we have stressed repeatedly, and it 112 A. A. R. P. v. TRUMP Alito, J., dissenting calls for such procedural protections as the particular situa- tion 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 fnally adjudicate the notice rights of members of the putative class without asking that court to do its own analysis regarding whether class certifcation as to those claims would be appropriate. Ante, at 99. Clearly, the Court would prefer to ignore the important step of class cer- tifcation and skip directly to the adjudication of the class members' rights. The Federal Rules do not permit such a shortcut.

III Page Proof Pending Publication 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 dismiss- ing 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 en- tirely 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 of frst view.” Cutter v. Wil- kinson, 544 U. S. 709, 718, n. 7 (2005). Even on the Court's reading of what happened below, all that the District Court Cite as: 605 U. S. 91 (2025) 113 Alito, J., dissenting 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 frst instance. To my eyes, that looks far too much like an expansion of our original jurisdiction.

I must therefore respectfully dissent.

Page Proof Pending Publication Reporter’s Note The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: p. 112, line 3 from bottom: “of ” is inserted before “frst”