Trump Administration Deports Another Alien to El Salvador in Violation of Court Order

S ometimes, the government really does just screw up. The problem for the Trump administration is that it has acted duplicitously enough times that its critics understandably assume the worst.

My intuition is that the worst was not what happened in the case of Jordin Alexander Melgar-Salmeron. Nevertheless, the administration did deport him to El Salvador on May 7 . . . about a half hour after the Trump Justice Department represented to the U.S. Court of Appeals for the Second Circuit that the government would not deport him until at least May 8, to give the court time to address his case.

On Tuesday, a three-judge panel of the Second Circuit ordered the government to facilitate Melgar-Salmeron’s return to the United States, such that his case could proceed as it would have had he not been repatriated. In this, the circuit followed the Supreme Court’s Abrego Garcia precedent — the now-notorious case of another Salvadoran national whom the Justice Department conceded was deported, because of “administrative error,” to his home country despite a 2019 “withholding of removal order” (meaning he could not be sent to El Salvador because of his credible fear of persecution, but could have been deported someplace else).

It appears that the administration should be able to deport Melgar-Salmeron. Apparently while a member of the vicious MS-13 criminal enterprise, he pled guilty to felony possession of an unregistered sawed-off shotgun. Given that it was a plea bargain that resulted in Melgar-Salmeron’s spending two years in federal prison, I can only assume that he agreed to plead guilty to avoid what would have been even more serious charges had he gone to trial.

In a sympathetic account, the New York Times reports that Melgar-Salmeron “has since disavowed the gang and now has a wife and four children in Virginia.” Sure, maybe he’s now a cuddly Virginia man, just as we were told the aforementioned Kilmar Abrego Garcia was a cuddly “Maryland man.” In Melgar-Salmeron’s case, however, he’s also a convicted criminal alien — exactly the kind of illegal alien whose removal the Trump administration has appropriately prioritized.

Naturally, he now claims fear of persecution if he is returned to El Salvador. It seems like a weak claim. The State Department has signaled that, despite the notorious reputation of El Salvador’s anti-terrorism prison, in which many members of MS-13 and other gangs have been incarcerated, it is satisfied that there will be no persecution or torture of people the U.S. deports to El Salvador. Though it’s reasonable to be skeptical about that, the courts will not second-guess the political branches on such determinations, under the Supreme Court’s decision in Manuf v. Geren (2008).

Moreover, the mere possibility that Melgar-Salmeron could be prosecuted under Salvadoran law, whether for gang crimes or other illegal activity, does not mean he would be subjected to persecution. In removing criminal aliens, the United States is under no obligation to try to immunize them from prosecution under the receiving country’s laws, just to assure that they won’t be persecuted or tortured.

That said, Melgar-Salmeron has a right under U.S. immigration law to make a fear-of-persecution claim. He has no substantive right to prevail on the claim, but he has a due process right to make the claim. That, apparently, is the issue that delayed his removal.

In its two-page order, the Second Circuit also denied Melgar-Salmeron’s request that it appoint a special master to investigate the government’s alleged misleading of the court — i.e., the Trump Homeland Security Department’s deportation of the alien at the same time the Trump DOJ was assuring the court that there would be no deportation. The panel explained that, in “detailed affirmations and information provided to this Court,” prosecutors had conceded that “a perfect storm of errors occurred to allow for Petitioner’s untimely, and inadvertent, removal despite the Government’s assurances and the eventual stay order.” The circuit concluded that the government lawyers “who made the forbearance assurance to this court took reasonable and diligent steps to ensure that removal would not occur in violation of that assurance.”

Reading between the lines, there was some screwup in the communications between DHS and DOJ officials, causing the former to conclude that they could proceed with the deportation flight even as the latter were sincerely informing the court that Melgar-Salmeron would remain in the United States. I can assure you, this stuff happens. Many, however, will not give the Trump administration and its Justice Department the benefit of the doubt. For that, you can’t blame them.

When a Justice Department official properly conceded to the court that Abrego Garcia’s illegal deportation was an administrative error, Attorney General Pamela Bondi and Deputy Attorney General Todd Blanche suspended and then fired him. (As Ed Whelan reports over at Bench Memos, that former DOJ official, Erez Reuveni, has now become a whistleblower, asserting that Principal Associate Deputy Attorney General Emil Bove III — President Trump’s nominee to a prestigious seat on the Third Circuit appeals court — told DOJ subordinates that court orders would be ignored as necessary in order to fulfill Trump’s campaign promise to aggressively deport illegal aliens.) Subsequently, top Trump adviser Stephen Miller insisted that Abrego Garcia’s deportation was not an error at all, even as Trump Solicitor General D. John Sauer was conceding to the Supreme Court that he had been deported in error and in violation of a DOJ immigration judge’s 2019 order.

The administration repeatedly insisted that it could not bring Abrego Garcia back because he was now under Salvadoran jurisdiction — and even got Salvadoran president Nayib Bukele to echo that line. Yet, the administration miraculously managed to cause El Salvador to transfer Abrego Garcia back to U.S. custody right after the Trump DOJ indicted him — demonstrating that, despite its public rhetoric, the administration could have returned Abrego Garcia at any time. Meantime, Attorney General Bondi has publicly misdescribed the indictment as if it charged Abrego Garcia with serious crimes; in point of fact, while the indictment mentions MS-13’s connection to murder, drug trafficking, gun trafficking, and sexual abuse, Abrego Garcia is not charged with any of those offenses or even with membership in MS-13; he is charged in two counts of illegally transporting aliens.

And of course, there are the debacles over the administration’s illegal summary deportation of scores of Venezuelan aliens — under a presidential Alien Enemies Act (AEA) proclamation — without allowing them to challenge either the deportations or the administration’s allegation that they are Tren de Aragua gang members, even though the administration now concedes that they had that right. Even as the Trump DOJ was making that concession in court, the administration furtively tried to pull off a second deportation flight a month later, only to be stopped by Supreme Court intervention in the wee hours of a Saturday morning. In the interim, a Trump-appointed federal judge in Texas ruled (correctly in my view) that the president’s AEA invocation was legally untenable.

On that record, it is impressive that the government lawyers in Melgar-Salmeron’s case managed to convince the Second Circuit that his deportation was a good-faith error rather than something more insidious.

Still, the Trump administration continues to shoot itself, and its credibility, in the foot. To address Melgar-Salmeron’s illegal deportation, the DOJ proposed that, if he manages, from whatever his current straits are in El Salvador, to present himself at a U.S. port of entry, the government will parole him into the country to pursue his case. This is the same offer Bondi made in Abrego Garcia’s case, and it was obviously both insufficient and disingenuous: (a) Since the DOJ is responsible for the illegal deportation, it is obliged to make affirmative efforts to cure the problem; and (b) the offer implies that the administration is powerless to persuade the Salvadoran government to return Melgar-Salmeron when we know, from President Trump’s own words and from the administration’s actions in the Abrego Garcia episode, that El Salvador would return the alien if the administration asked it to do so.

That being the case, the Second Circuit rejected the administration’s position. Instead, the panel directed that the DOJ

file, within one week of this Order, a supplemental declaration from an individual with personal knowledge, addressing the following: (1) the current physical location and custodial status of Petitioner; and (2) what steps the Government will take, and when, to facilitate his return to the United States.

This was exactly what the DOJ had to know would happen. The panel, composed of a Trump appointee and two Biden appointees, simply followed a very recent Supreme Court decision — and did so under circumstances in which the administration has demonstrated that it has suasion over the Salvadoran government, which it is paying to hold hundreds of deportees.

The administration should have, on its own initiative, brought Melgar-Salmeron back, given him his fear-of-persecution proceeding, denied his claim (even if that entailed an appellate process), and then removed him. It’s not an unduly burdensome process; the administration is making it unnecessarily burdensome by poor performance and the generation of unnecessary appeals. It’s really not that hard: Follow the law, don’t make misrepresentations, and correct your inevitable mistakes before the other side gets a court to force you to correct them. The Justice Department is going to lose cases it should win if it doesn’t get back to that rudimentary standard.