The Supreme Court on Thursday ordered President Donald Trump’s administration to “facilitate” the return of a Maryland man who was mistakenly deported to El Salvador, but did not require the government to return him to the United States.
The high court ruled that the administration must try to return Kilmar Armando Abrego Garcia, a Salvadoran national deported on March 15. It stated that a portion of the lower court’s order requiring the government to “effectuate” his return was unclear and warranted further review.
The court did not set a deadline for the administration to return Abrego Garcia. The opinion was unsigned, and no dissenting views were noted.
“Tonight, the rule of law won. “The Supreme Court upheld the District Judge’s order that the government bring Kilmar home,” said Simon Sandoval-Moshenberg, one of Abrego Garcia’s lawyers. “Now they need to stop wasting time and get moving.”
However, the Trump administration framed the decision as a victory for its position.
“As the Supreme Court correctly recognized, it is the president’s exclusive prerogative to conduct foreign affairs,” a Department of Justice spokesperson stated.
“By directly noting the deference owed to the executive branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the president’s authority to conduct foreign policy.”
The high court’s unsigned and brief decision upheld US District Judge Paula Xinis’ order but distinguished between “facilitating” and “effectuating” Abrego Garcia’s return. The lower court correctly required the government to “facilitate” his return, the justices clarified.
“The intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority,” the Court of Appeals wrote on Thursday.
The court ordered Xinis to “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” That appeared to be a reference to the Trump administration’s argument in the case.
In written briefs, the Trump administration warned that requiring it to “effectuate” Abrego Garcia’s return would be a violation of separation of powers. And it defined “facilitate” narrowly in those briefs, essentially removing any obstacles to his return.
Finally, the majority left it to the lower court to determine how to strike a balance.
“Although the ruling makes clear that the district court can order the Trump administration to facilitate Abrego Garcia’s return to the United States, it is maddeningly vague about exactly how it’s supposed to do so,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
“For instance, if the judge asks the government about the specific arrangements it’s made with the Salvadoran government and the government invokes the state secrets privilege, what happens then?” Vladeck added. “It is, yet again, punting in a context in which the government can take advantage of the punt – a loss for Trump on the big question, but a loss for Abrego GarcÃa on what matters most.”
“The Supreme Court’s opinion today gives the administration cover to ‘try’ to bring him home but does not require the federal government – the executive branch – to bring Mr. Abrego Garcia home,” Elora Mukherjee, director of Columbia Law School’s Immigrants’ Rights Clinic, told CNN. “It’s a decision that doesn’t protect Mr. Abrego Garcia to the fullest extent that the law should.”
Xinis ordered the Trump administration on Thursday night to “take all available steps to facilitate” Abrego Garcia’s return, hours after the Supreme Court’s order.
The lower court judge also ordered the Justice Department’s lawyers to provide her with a sworn statement by 9:30 a.m. ET Friday from someone “with personal knowledge” of the steps the government has taken or intends to take to secure Abrego Garcia’s return. Xinis has scheduled a hearing on the issue for Friday afternoon.
Liberals wanted Trump appeal denied in full
The court’s three liberals did not dissent from the decision, but they wrote separately to argue that the Trump administration’s emergency appeal should have been denied entirely.
Justice Sonia Sotomayor cited executive branch policy that states the federal government should facilitate an alien’s return to the US if their presence is necessary for ongoing administrative removal proceedings.
Sotomayor’s statement chastised the Trump administration for dismissing the incorrect removal as a “oversight,” rather than “hastening to correct its egregious error.”
“The Government now requests an order from this Court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law,” the liberals, including her, said. “The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong.”
Sotomayor stated that when the case returns to the lower court, the judge should “continue to ensure that the government lives up to its obligations to follow the law.” Among those obligations, she stated, are several due process safeguards in immigration law, as well as the United Nations Convention Against Torture.
Ties to MS-13?
Abrego Garcia was arrested by Department of Homeland Security officers on March 12 and placed on one of three planes bound for El Salvador a few days later. However, even the Trump administration acknowledged that an immigration judge had barred his deportation to El Salvador years ago due to safety concerns in his home country.
Following his family’s lawsuit, Xinis ordered the government to return Abrego Garcia by 11:59 p.m. on Monday. But Trump officials said it couldn’t negotiate with El Salvador so quickly, and they argued that federal courts couldn’t compel the president’s foreign policy or review the attorney general’s decision to carry out removal orders.
However, the Richmond-based 4th US Circuit Court of Appeals unanimously sided with Abrego Garcia. Two of three judges concluded that federal law only deprives courts of the authority to review lawful decisions made by the Attorney General.
Those judges also concluded that Abrego Garcia remained a US detainee, albeit temporarily housed in El Salvador. In other words, the court stated that the Trump administration had the authority to return him on its own.
Abrego Garcia entered the country illegally around 2011, but in 2019, after reviewing evidence, an immigration judge denied his removal. This meant Abrego Garcia could not be deported to El Salvador. The immigration judge discovered that a gang in his home country was “targeting him and threatening him with death because of his family’s pupusa business.”
Solicitor General D. John Sauer, the Trump administration’s newly confirmed top appellate attorney, claims Abrego Garcia is a “ranking member” of the MS-13 gang. Sauer argued that because the Trump administration designated MS-13 as a foreign terrorist organization, the withholding from immigration court was no longer valid.
According to the administration, Abrego Garcia was arrested “in the company of other ranking gang members” and was confirmed as a gang member by a “reliable source.”
However, Abrego Garcia’s attorneys have stated that their client faces no criminal charges in Maryland or anywhere else. And they have denied his involvement with MS-13.
The evidence suggests that Abrego Garcia is “a gainfully employed family man who lives a law-abiding and productive life,” according to US Circuit Judge Stephanie Thacker, an Obama nominee. “The government has made no effort to demonstrate that Abrego Garcia is, in fact, a member of any gang,” according to the case at hand.
On March 15, Abrego Garcia was sent to El Salvador’s notorious prison. Several of the immigrants loaded onto those planes were deported as a result of Trump’s use of the 1798 Alien Enemies Act, which has sparked a slew of legal challenges, including a case heard by the Supreme Court.
However, Abrego Garcia was deported by different authorities.
On Tuesday, the Supreme Court granted Trump a partial victory, allowing him to continue using the contentious Alien Enemies Act while also requiring officials to provide notice to people who may be subject to the act so that they can request a judge review their case.
It’s not clear how this will work in practice. The Supreme Court did not specify how much notice detainees should be given or how lower courts should handle the proceedings.
The Supreme Court’s decision also raised questions about the fate of people who had already been deported under the act.
