After Fourth Circuit Rebuke of Trump Administration, Supreme Court Temporarily Stays Judge’s Order to Return Illegal Alien from El Salvador

Supreme Court Chief Justice John Roberts has granted the Trump administration’s request for an administrative stay that, for now, blocks a federal judge’s order that the government return to the United States an illegal alien it deported to El Salvador with no due process and despite a 2019 immigration court order prohibiting the Salvadoran national’s repatriation.

An administrative stay is not a ruling on the merits; it is just a brief stopping of the clock so that the Court can determine whether and how to intervene in the case. The administration’s emergency petition, filed by the Justice Department’s newly Trump-appointed solicitor general, D. John Sauer, was submitted to Roberts because he is the circuit justice for the Fourth Circuit. We should expect the chief justice to refer the matter to the full Supreme Court, as is customary in consequential cases.

There could be quick action: Chief Justice Roberts gave counsel for the alien, Kilmar Armando Abrego Garcia, until close of business tomorrow (Tuesday) to submit a response to the Trump administration’s application; but Abrego Garcia’s lawyers knew this was coming and have already filed their response.

I would be surprised if the Court intervenes.

The chief justice’s administrative stay was issued only after, earlier today, a three-judge panel of the Fourth Circuit U.S. appeals court swiftly and sharply rejected the Trump Justice Department’s request that it pause Judge Paula Xinis’s order. An Obama appointee to the federal district court in Maryland, Judge Xinis had given the Trump administration a deadline of just before midnight tonight to return Abrego Garcia to the United States. That deadline was effectively nullified by Roberts’s administrative stay.

As I’ve previously detailed (see here and here), Abrego Garcia was living in Maryland with his American citizen wife and their children until March 12, when he was arrested by immigration agents. Rather than presenting him before an immigration or judicial court, as is the usual procedure after an arrest, the Trump administration put Abrego Garcia on one of three planes carrying 261 aliens that the administration deported to El Salvador on March 15. There, under an agreement with the Trump administration, the regime of President Nayib Bukele is detaining the aliens in a massive, overcrowded prison designed to house terrorists and gang members — notwithstanding the State Department’s alarming 2023 report about El Salvador’s treatment of prisoners.

The Fourth Circuit’s panel included Judges J. Harvie Wilkinson III, Robert B. King, and Stephanie D. Thacker, appointed, respectively, by Presidents Reagan, Clinton, and Obama. The circuit was unanimous in concluding that the Trump administration acted lawlessly and must facilitate Abrego Garcia’s return from El Salvador. There were two concurrences, however, and their reasoning differs slightly regarding the court’s authority to direct the administration to impose on the Salvadoran government.

Judge Thacker’s concurrence, joined by Judge King, starts with a bracing passage:

Thacker addresses and puts to rest an oddity about the proceedings before Judge Xinis that I described in one of the above-linked posts: the confusion in the record about whether the 2019 immigration court proceedings against Abrego Garcia produced an order of removal allowing the government to deport him. In the lower court hearing on Friday, Judge Xinis says, the government suggested both that there was no removal order (“no order of removal is part of the record”) and that perhaps there was one but it could not be executed.

All of the parties agree that there was an order of withdrawal of removal, under which the government was barred from repatriating Abrego Garcia to El Salvador (because an immigration judge credited his fear-of-persecution claim). The Justice Department concedes that the Trump administration has violated this order.

Thacker points out that three things flow from this concession. First, there must have been a removal order because such an order “is separate from and antecedent to a grant of withholding of removal.” Second, under a jurisdiction-stripping statute (Section 1252(g)), the courts only lose jurisdiction when the attorney general is exercising her lawful discretion; hence, in this instance, court jurisdiction is proper because AG Pamela Bondi did not have lawful discretion to deport Abrego Garcia to El Salvador. Third, as I noted this morning, Bondi had a mechanism under immigration law to reopen the immigration judge’s 2019 withholding of removal to El Salvador, but Judge Thacker joins Judge Xinis in observing that the Justice Department failed to “avail itself of that procedure in this case.” Instead, it arrested and deported Abrego Garcia with no due process and in violation of the order prohibiting removal to El Salvador.

Like Judge Xinis, Judge Thacker rejected as scantly supported the administration’s claim that Abrego Garcia is a member of the MS-13 international criminal organization — much less a “prominent” member, as the administration’s public messaging maintains. Thacker points out that the government presented no evidence to Xinis to connect Abrego Garcia to MS-13 or any other criminal organization and, further, expressly abandoned its previously held position that Abrego Garcia poses a danger to the community. (Thacker added that the record indicates “Abrego Garcia has no criminal history, in this country or anywhere else.”)

Similar to his panel colleagues, Judge Wilkinson concludes, “There is no question that the government screwed up here.” He also observes that it was appropriate for the government’s lawyer, Erez Reuveni, to concede the violation of law. This echoes Judge Thacker who, joined by Judge King, expressed alarm that Reuveni has been suspended, “ostensibly for lack of ‘zealous[] advocacy,” but more realistically for adhering to “the duty of candor to the court” all government lawyers are expected to honor. (My post about Reuveni’s suspension is linked above.) Moreover, Wilkinson is rightfully disturbed by the notion that

the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.

Where Judge Wilkinson and his colleagues part company is over the propriety of a court’s ordering the executive branch to direct a foreign country to release its own citizen into American custody. Wilkinson believes this is more constitutionally complicated than the other two judges. Yet, to these eyes, there is less to this disagreement than appears at first blush.

Wilkinson is not saying the court has no business intruding here to vindicate due process and federal immigration law. Rather, he maintains that, consistent with separation of powers principles, the court must not go further than to direct the government to do what it can to “facilitate” the alien’s return.

For their part, Judges Thacker and King are not arguing for a general rule empowering judges to tell presidents how to deal with foreign regimes. Rather, they are saying that in this peculiar situation — in which the Trump administration has outsourced its custodial responsibility for detainees formerly held in federal custody to another country, in exchange for financial considerations; and in which the Trump administration has retained control over the detainees, with El Salvador expressly agreeing that, in one year, the Trump administration will determine the disposition of the detainees — then the federal government continues to be responsible for the detainees. That being so, the administration may readily require their return to the United States, to comply with laws that the government has violated and that the president is sworn to uphold.

Whether one describes this arrangement as one in which the Trump administration should “facilitate” the alien’s release by El Salvador for return to the United States, or one in which the Trump administration requires El Salvador to return the alien to American custody consistent with the publicly announced outsourcing agreement, the result is the same: The Trump administration should ask El Salvador to release Abrego Garcia back into the physical custody of American officials, and should expect that El Salvador will comply.

We will watch what happens next in the Supreme Court.