The Venezuelans should have less trouble than Abrego Garcia in convincing a court to direct the government to facilitate their return to the U.S.
The Venezuelans should have less trouble than Abrego Garcia in convincing a court to direct the government to facilitate their return to the U.S.
L ast week, I explained that lawyers for Kilmar Abrego Garcia have a weaker case than they may initially have believed for demanding his return to the United States. That’s because the government represents that he is not covered by the agreement under which El Salvador is detaining prisoners at the behest of the United States for up to a year, with the United States having paid $6 million. (I’ll refer to that as “the agreement.”)
Instead, the agreement covers only Venezuelan aliens whom the government suspects of membership in the Tren de Aragua (TdA) criminal organization against whom President Trump invoked the Alien Enemy Act (AEA). This may prove to be a boon for the aliens already deported to El Salvador on March 15, ACLU lawyers for whom have revamped the lawsuit brought on their behalf in Washington, D.C.
The argument that a prisoner remains in the constructive custody of the United States, with El Salvador’s government as the agent of our government in what’s essentially a bailment, hinges on whether the deportee in question is part of the agreement.
Abrego Garcia
Abrego Garcia is not in the agreement, so he is no longer in constructive American custody. Ergo, the U.S. is not in a legal position to direct El Salvador to hand him over to American agents for transfer to the United States.
The Supreme Court directed the Trump administration “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.”
As to the first part of that formulation, the Trump administration may contend that it cannot facilitate Abrego Garcia’s release from custody if he may already have been released. The record on whether he is still incarcerated is murky. Upon arriving in El Salvador, Abrego Garcia was detained in CECOT, the country’s terrorism mega-prison. He was certainly not in custody at CECOT, however, when he met Senator Chris Van Hollen earlier this month. I cannot say whether he remains in some form of custody in El Salvador.
Meanwhile, the Trump DOJ has given evasive answers on the public record about Abrego Garcia’s current status (see here, page 4). Yet, there is now reason to believe the DOJ has been more forthcoming in sealed submissions and discussions with Abrego Garcia’s counsel (on the basis of which, Judge Paula Xinis, without objection from Abrego Garcia’s lawyers, has suspended until this coming Wednesday, April 30, her directive that the government provide daily updates). So, while Abrego Garcia’s custodial status may be unclear to us, the parties and the judge surely know more than we do.
The second part of the Supreme Court’s order, again, is that Abrego Garcia be placed in the same position he would have been in had he not been illegally deported. Presumably, that would mandate returning him to the United States to pursue a habeas corpus challenge against his deportation. But as we’ve discussed, Abrego Garcia is not in the agreement, so the U.S. cannot direct El Salvador to facilitate his return.
Putting aside the illegality of the deportation (and I know, that’s a lot to “put aside”), our situation is one in which a Salvadoran national whose presence in the United States was illegal has been repatriated and is now living, not under the agreement, but under the laws of his home country. In that posture, to get him back to the United States for court proceedings, our government would have to conduct diplomatic negotiations with the regime of President Nayib Bukele. Under separation of powers principles, however, the judiciary lacks power to order the executive branch to engage in diplomatic negotiations with a foreign power.
That’s the conundrum. As I said to Rich on the podcast last week, the oddity here is that, historically, when the government violates the law, it acknowledges a duty to cure the violation — it’s usually unnecessary for a judge to twist the executive branch’s arm. But this is not a conventional administration. Its stance is: “Yeah, we deported him illegally, but what are you going to do about it?” In a normal world, knowing Bukele is beholden to Trump, the administration would just ask El Salvador to transfer Abrego Garcia to the custody of U.S. agents, it would be done instantly, and he’d be returned to Maryland to litigate a habeas petition. But that’s not how the Trump administration operates.
In sum, Abrego Garcia is a Salvadoran national who has no legal right to be present in the United States except for his presence at legal proceedings. If he were returned for such proceedings, he would surely be detained, and would very likely lose — meaning: He’d just get deported again, probably back to El Salvador if, in the interim, Attorney General Pamela Bondi follows the legal process for reversing the 2019 withholding of removal order that made his deportation last month illegal. The administration is dug in on its position that it won’t bring Abrego Garcia back — in part because Trump doesn’t like to look like he’s backing down, and in part because he likes the specter of publicly displaying that the judges can huff and puff but they have no power to force him to do anything.
As a trend, that won’t end well. In this particular case, though, it wouldn’t shock me if Trump and Bukele arranged a financial settlement in which Abrego Garcia drops the objection to his deportation — which probably wouldn’t cost much since he’s going to be deported one way or the other.
Venezuelans Alleged to Be TdA Members and Deported under the AEA
The deported Venezuelans have a different complication.
They are in the U.S.-El Salvador deportation agreement. The Trump administration’s argument that they are under the Bukele regime’s sovereign control is meritless. The agreement gives the U.S. control, and the Trump administration, if it were disposed to do so, could direct that El Salvador transfer the deportees to the custody of American agents so they could be brought back to the U.S., where they’d be detained while litigating challenges to their designation under Trump’s AEA proclamation.
The complication? Even if they are deemed in constructive U.S. custody, they are being detained in a foreign country outside the jurisdiction of the federal courts.
In Trump v. J.G.G. (April 7), the Supreme Court unanimously affirmed that AEA-designated aliens are entitled to challenge both whether they are members of TdA and whether the president properly invoked the AEA — i.e., to raise such questions as whether (a) the AEA is limited to wartime conditions, (b) TdA is a foreign power, and (c) TdA has carried out an invasion or predatory incursion as those terms in the AEA are properly construed. Nevertheless, the Court narrowly split on the proper legal vehicle for such a legal challenge. The 5–4 majority held that it must be brought by habeas corpus — meaning, by filing a petition in the federal district in which the petitioner is detained.
That’s fine for the AEA-designated aliens who are still in custody in the United States, mostly fighting removal proceedings. But the 137 AEA-designated aliens deported in mid-March are not in the United States anymore. So far as we know, they are detained in CECOT in El Salvador.
This is why, in their overhauled lawsuit, ACLU lawyers have revived their contention before Judge James Boasberg that the deported aliens should be permitted to bring their challenge as a class action under the Administrative Procedure Act (APA). They maintain that if habeas is deemed unavailable to the Venezuelans because they are not incarcerated in a federal district, then they should be able to invoke the APA. In his J.G.G. concurrence, Justice Brett Kavanaugh explained that the APA is not available “when there is another adequate remedy in a court” — namely, habeas. By that logic, if habeas is not available, the APA should be, and the lawyers contend that venue is proper in Washington, D.C., because that’s where President Trump’s directive to deport the aliens was issued.
Alternatively, the ACLU argues, based on the post-9/11 cases against alien enemy combatants, that if the aliens are not present in a federal court’s jurisdiction, but they are being held in a foreign location under circumstances in which the United States government maintains dominion and control over their detention, then they should be able to bring habeas petitions in Washington, D.C. Notwithstanding the principle that the defendant in a habeas action is the warden holding the prisoner, the Supreme Court construed the federal habeas statute to enable aliens detained in Guantanamo Bay — who, unlike the Venezuelan deportees, had never been present in the U.S. — to sue the government in Washington, D.C.
The ACLU also continues to argue, dubiously, that habeas claims can be brought by a class action, a position that the Justice Department opposes (as it explained in the related case of Venezuelans designated under the AEA who have not yet been deported). The Supreme Court has never conclusively decided the question, but it has signaled that habeas corpus is generally for individualized determinations. Moreover, as the DOJ contends, the question of whether an alien is a member of TdA would call for an individualized determination, whereas class actions are for common questions raised by numerous claimants.
If we set aside the complication of finding the right legal theory for asserting their claim, the Venezuelan deportees should have less trouble than Abrego Garcia in convincing a court to direct the government to facilitate their return to the United States. While they are physically in El Salvador’s custody, they are constructively in American custody under the agreement between the two countries. The ACLU makes precisely this argument in its above-linked lawsuit (at pages 7–8).
In the end, because of the agreement, the Venezuelan deportees have a stronger case for federal court intervention in their favor than does Abrego Garcia. That said, the Trump administration is certain to resist any judicial order to facilitate the return of upwards of a hundred alleged TdA members even more strenuously than it has an order that it do so for one alleged MS-13 member.