Supreme Court Sides With Wrongly Deported Migrant

The Supreme Court on Thursday instructed the government to take steps to return a Salvadoran migrant it had wrongly deported to a notorious prison in El Salvador.

In an unsigned order, the court endorsed part of a trial judge’s order that had required the government to “facilitate and effectuate the return” of the migrant, Kilmar Armando Abrego Garcia.

“The order properly requires the government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the Supreme Court’s ruling said. “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 district court should clarify its directive, with due regard for the deference owed to the executive branch in the conduct of foreign affairs,” the Supreme Court’s ruling continued. “For its part, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

Judge Paula Xinis of the Federal District Court in Maryland had said the Trump administration committed a “grievous error” that “shocks the conscience” by sending Mr. Abrego Garcia to El Salvador despite a 2019 ruling from an immigration judge. The immigration judge granted him a special status known as “withholding from removal,” finding that he might face violence or torture if sent to El Salvador.

The administration contends that Mr. Abrego Garcia, 29, is a member of a violent transnational street gang, MS-13, which officials recently designated as a terrorist organization.

Judge Xinis, who was appointed by President Barack Obama, said those claims were being based on “a singular unsubstantiated allegation.”

“The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie,” she wrote, “and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.”

The U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., refused to pause Judge Xinis’s ruling, likening Mr. Abrego Garcia’s deportation to an act of official kidnapping.

“The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” wrote Judge Stephanie D. Thacker, who was appointed by Mr. Obama. “The government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”

Judge Robert B. King, who was appointed by President Bill Clinton, joined Judge Thacker’s opinion.

A third member of the panel, Judge J. Harvie Wilkinson III, issued a concurring opinion agreeing that no stay was warranted. But he stopped short of the majority’s position that Judge Xinis had the power to tell the government to demand Mr. Abrego Garcia’s return.

“There is no question that the government screwed up here,” Judge Wilkinson wrote. But he drew a distinction.

“It is fair to read the district court’s order as one requiring that the government facilitate Abrego Garcia’s release, rather than demand it,” wrote Judge Wilkinson, who was appointed by President Ronald Reagan. “The former seems within the trial court’s lawful powers in this circumstance; the latter would be an intrusion on core executive powers that goes too far.”

The administration then turned to the Supreme Court.

In its emergency application, D. John Sauer, the U.S. solicitor general, said Judge Xinis had exceeded her authority by engaging in “district-court diplomacy,” because it would require working with the government of El Salvador to secure Mr. Abrego Garcia’s release.

“If this precedent stands,” he wrote, “other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business,” he wrote. “Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States’ diplomatic relations with the whole world.”

In a response to the court, Mr. Abrego Garcia’s lawyers said their client “sits in a foreign prison solely at the behest of the United States, as the product of a Kafka-esque mistake.”

They added: “The district court’s order instructing the government to facilitate Abrego Garcia’s return is routine. It does not implicate foreign policy or even domestic immigration policy in any case.”

Mr. Sauer said it did not matter that an immigration judge had previously prohibited Mr. Abrego Garcia’s deportation to El Salvador.

“While the United States concedes that removal to El Salvador was an administrative error,” Mr. Sauer wrote, “that does not license district courts to seize control over foreign relations, treat the executive branch as a subordinate diplomat and demand that the United States let a member of a foreign terrorist organization into America tonight.”

Mr. Abrego Garcia’s lawyers said there was no evidence that he posed a risk.

“Abrego Garcia has lived freely in the United States for years, yet has never been charged for a crime,” they wrote. “The government’s contention that he has suddenly morphed into a dangerous threat to the republic is not credible.”