A federal appeals court is rejecting the Trump administration’s request for a stay on a temporary block on its ability to use the Alien Enemies Act to deport suspected members of a Venezuelan gang.

On Wednesday, the United States Court of Appeals for the District of Columbia Circuit ruled 2-1 against the request to lift Judge James Boasberg’s order blocking the use of the 18th century law. 

Judge Boasberg had blocked the Trump administration from citing the Alien Enemies Act, which has only been used during war time since it was enacted more than 220 years ago but is not excluded from peace time use, hours after the act was used to deport suspected members of the Venezuelan gang, Tren de Aragua.

The timing of the order has become a source of contention as Judge Boasberg has questioned whether the administration disobeyed his order to have planes carrying suspected gang members to El Salvador return to America.

The use of the law has also raised due process concerns for those who face deportation, as some civil rights advocates note that Venezuelan migrants deported to El Salvador insisted they were not members of Tren de Aragua. 

A panel of circuit court riders heard arguments in the administration’s request for an injunction earlier this week, which made headlines after one of the justices on the panel, Judge Patricia Millett, suggested that Nazis who were removed from America during World War II under the Alien Enemies Act received “better treatment” than the migrants the Trump administration deported. 

“People weren’t given notice. They weren’t told where they were going,” she said of the migrants the Trump administration deported. 

Wednesday’s order declining the motion for a stay was unsigned. However, it included opinions from Judge Millett, who was appointed by President Obama, and Judge Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

Judge Henderson warned that allowing the Trump administration to use the law “risks exiling plaintiffs to a land that is not their country of origin” where they could face torture. 

“Plaintiffs allege that the government has renditioned innocent foreign nationals in its pursuit against TdA. For example, one plaintiff alleges that he suffered brutal torture with ‘electric shocks and suffocation’ for demonstrating against the Venezuelan regime,” she wrote. 

Judge Millett said there is “neither jurisdiction nor reason” for the appeals court to issue a stay or to “allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court.”

Lawyers for the Justice Department argued that Judge Boasberg’s order represents an “unprecedented and enormous intrusion” on the president’s authority.

The administration is expected to appeal the ruling.