This seems to have been epic government incompetence.
This seems to have been epic government incompetence.
Y esterday, our Kamden Mulder reported on the court order that Kilmar Abrego Garcia (hereafter, Abrego) be released from federal custody. Having already had more than enough to say about this astonishingly ill-considered case (see, e.g., here, here, here, here, and here), I’ll stick to the issues at hand.
In the end, the most mind-blowing development involves the most basic point. According to Judge Paula Xinis, an Obama appointee to the federal district court in Maryland, there never was an order of removal pertaining to Abrego.
That is: It’s not just that Abrego was illegally deported to El Salvador in violation of a Justice Department immigration judge’s “withholding of removal order,” which barred repatriating Abrego (a Salvadoran) to his native country; he should never have been apprehended by ICE agents in the first place because they lacked the order of removal needed to predicate an arrest and summary deportation.
This seems to have been epic government incompetence.
Abrego entered the United States illegally in 2012 at the age of 16. After he was arrested in 2019, it appears that the immigration judge got confused at the October 10, 2019, removal hearing. (Immigration judges (IJs) are executive branch officials who work for the Justice Department; they are not Article III judges — i.e., officers of the independent judicial branch.) As Judge Xinis detailed in the 31-page opinion issued yesterday, the IJ appeared to believe that the country at issue in Abrego’s case — i.e., the country to which the government sought to send him and from which he sought withholding of removal — was Guatemala, not El Salvador.
Even assuming that was clarified, it seems that the IJ failed to issue a removal order. There must have been some intention to do so since there is no point in granting withholding of removal (an order protecting the alien from being sent to a particular country) unless the alien is first found to be removable. But as Xinis detailed, she has been asking the Trump Justice Department for months to produce the order of removal, and it has failed both to do so and to explain whether there ever was one.
As a matter of law, the judge explained, the order of removal (which is supposed to stipulate that the alien has been found removable and to name a country or countries to which he is to be removed) is different from the order of withholding of removal. Xinis concluded that the existence of the former cannot be inferred from the latter. Nor, she added, could the court infer the existence of the removal order from the fact that Abrego had acted at times during the litigation as if there must be an order: There is no dispute that he entered illegally and did not take any action to try to legalize his status; and while he contested the government’s attempts to deport him to various countries, he did not really contest that he was removable someplace. Indeed, he was eager to be removed to Costa Rica.
It is just baffling that the Trump Justice Department could not produce the order that was the basis for the entire proceeding. Even more baffling is that the DOJ took no apparent steps to obtain a valid order of removal. I have previously noted how puzzling it is that Attorney General Pamela Bondi did not try to avail herself of the legal process for vacating an order of withholding of removal. But that default pales in comparison to the DOJ’s failure to obtain an enforceable order of removal if one could not be found in the DOJ’s records — even as the judge, for months, prodded prosecutors on this score.
Think about it: The government did not just illegally deport Abrego and then go through the paces of bringing him back from El Salvador after extensive litigation in the district court, the Fourth Circuit, and the Supreme Court. The Trump DOJ also went to the trouble of indicting Abrego on dubious criminal charges in Tennessee (in order to try to ensure that he would not be released on bail when he was returned to the United States). Why go to all that effort yet not try to obtain a viable removal order (preferably one that got the restriction against removal to El Salvador stricken)? I don’t get it.
It appears that the DOJ was banking on the fact that Congress has endeavored to cut district court judges out of removal proceedings (as I’ve previously discussed). Bondi and her subordinates seem to have assumed that they didn’t need to make good faith efforts to comply with Xinis’s directives because they believed she didn’t have jurisdiction over the case in the first place. If so, that was inane. The government can respectfully but firmly argue that a judge has no business intervening in a matter while still acknowledging that judicial orders should presumptively be complied with unless and until a higher court reverses them.
In this instance, however, Xinis reasons that, since there was no removal order in the first place, the case before her, which Abrego brought against the government, could not be a removal proceeding. Instead, he claims that his deportation in the absence of a removal order would violate the Constitution and statutory law — a claim in the nature of habeas corpus, over which district judges do have jurisdiction.
I presume the government is going to challenge Xinis’s rationale on appeal, but the DOJ will not be helped in the higher courts by the way it has conducted itself in the lower court. It will similarly not be helped by Xinis’s finding that Abrego was “systematically beaten and tortured” while in the Salvadoran anti-terrorism prison to which the Trump administration consigned him. (For what it’s worth, that finding seems less than solid to me. As support, Xinis principally cites a report from the left-leaning Human Rights Watch. In word-searching the report, which names a number of prisoners, I couldn’t locate a mention of Abrego’s name, much less a discussion of his specific treatment. I have no idea, of course, whether Abrego was abused — although, as I noted earlier today, the State Department has described custody in El Salvador to be notorious for human rights violations. Nevertheless, just as the Trump administration has never proved Abrego is a member of MS-13, an HRW report is not conclusive proof that Abrego was beaten and tortured.)
As for the DOJ’s conduct, Xinis includes a 14-page factual recitation that only briefly deals with the lack of a removal order; most of it pertains to the prosecutors’ defiance of her orders.
Most notable is the DOJ’s dogged refusal to accommodate Abrego’s request to be removed to Costa Rica, despite the Costa Rican government’s willingness to take him. This includes a disturbing incident in which it appears that the DOJ claimed that Costa Rica had reneged on this commitment when, in fact, it had not. In the interim, despite Abrego’s desire to go to Costa Rica (a Central American country similar to El Salvador in language and culture), the Trump DOJ kept putting him on notice that he was about to be sent to one of four countries in Africa — Uganda, Eswatini, Ghana, and Liberia. In addition to Abrego’s objection to being sent to these places, it turned out that the Trump administration had not actually gotten these countries to agree to accept him — which, when eventually asked, they refused to do.
It appears to me that the Trump DOJ was trying to pressure Abrego to plead guilty to the aforementioned charges it had filed against him in Tennessee.
As I’ve previously detailed, the Justice Department made a splash upon filing the charges which, on perusal, appeared overblown and likely weak. And after insisting that Abrego would face the music, prosecutors ultimately told the court they would opt to remove Abrego from the United States rather than try to prove the criminal case. The defense has moved to dismiss the Tennessee charges, arguing that they are vindictive. (The Supreme Court told the administration to facilitate Abrego’s return to the U.S. so he could continue with the immigration case that the illegal deportation to El Salvador had interrupted; but the administration delayed in complying with this directive until it succeeded in filing an indictment that Abrego would have to face once he got back here — even as Trump officials were publicly claiming they couldn’t, or wouldn’t, facilitate Abrego’s return and braying that he would never be released in the U.S. again.)
If Abrego had agreed to plead guilty to the charges in Tennessee, I believe the administration would have accommodated his request to be removed to Costa Rica. It would not accommodate the request — even though the whole point of a removal proceeding is to remove the alien, and even though the alien was more than willing to be removed — because Abrego insisted on fighting the criminal case.
It boggles the mind. If Abrego is an MS-13 gang member, as Trump officials insist but, again, have never proved in court, they could easily have deported him by agreeing to his requested destination (which is what the government usually does in removal cases). Instead, Abrego has been released back into the United States. And if the Justice Department appeals, it is apt to get a chilly reception given its comportment throughout the proceedings.