In an order yesterday (in J.O.P. v. Department of Homeland Security), a divided Fourth Circuit panel declined to stay a district-court order that directs the Trump administration to “facilitate” the return to the United States from El Salvador of a Venezuelan national, “Cristian,” who the district court determined had been deported in violation of a court-approved settlement agreement. The district court’s order specifies that the “[f]acilitation” that it is ordering “includes, but is not limited to, a good faith request by Defendants to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States.”

This case obviously bears a resemblance to the Abrego Garcia litigation, in which the Supreme Court ruled that the district-court 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.” But Judge Julius Richardson’s dissent forcefully calls attention to (at least) two important distinctions.

First, in Abrego Garcia, the Trump administration conceded that its deportation of Abrego Garcia to El Salvador was illegal. (And, no, this wasn’t just a concession by a line attorney in the district court. The Solicitor General’s brief in the Supreme Court (p. 3) affirms that “the United States concedes that removal to El Salvador was an administrative error.”) By contrast, it does not agree that its deportation of Cristian violated the settlement agreement. Judge Richardson makes a strong argument that the settlement agreement ensured only that the government would not execute a “final removal order” without first adjudicating Cristian’s asylum application—and that the term final removal order “refers to the product of Title 8 proceedings,” not to any of the various other ways (e.g., extradition or, here, Trump’s Alien Enemies Act proclamation) the government “can compel an alien’s departure.”

Second, by directing the Trump administration to make a “request … to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States,” the district-court order, Judge Richardson argues, goes beyond the modified order in Abrego Garcia, which gives complete discretion to the Trump administration how to fulfill its duty to “facilitate” Abrego Garcia’s return. That specific directive, he contends, transgresses an important line: “however far ‘facilitate’ goes, it cannot encompass an order requiring specific diplomatic communication from the Executive Branch.”

The majority, in an opinion by Judge DeAndrea Gist Benjamin, responds to Richardson on this point by stating “that the Government cannot facilitate Cristian’s return telepathically—it must express in words to the government of El Salvador that Cristian be released for transport back to the United States.” In its view, the district court’s order is therefore “no different than the language” approved in Abrego Garcia. But the order in Abrego Garcia leaves the Trump administration free, say, to have a third party make the request or to offer implicit inducements to the government of El Salvador. So it’s far from clear that the orders are identical.

We shall see whether the Trump administration seeks a stay from the Supreme Court. If it does, it might prevail, though it’s quite possible that its bad-faith conduct on other immigration matters will make the Court ill-disposed to intervene.