On Friday evening, we posted my piece on “The Mind-Boggling Saga of Kilmar Abrego Garcia” (hereafter, Abrego). Little did I know at the time that a new chapter was already being added.
In a nutshell, after months of playing “hide the ball” (or is it, “hide the lack of a ball”?) about whether there exists an order of removal authorizing Abrego’s detention and deportation, the Trump Justice Department has attempted to cure the absence of an order by what appears to be a blatantly illegal process: To wit, without notice to Abrego, the DOJ went ex parte to a DOJ immigration judge who lacks jurisdiction over the case, but who nevertheless dutifully issued a “sua sponte order correcting scrivener’s error” order, under which everyone is now supposed to pretend — Abracadabra! — that there was an order of removal all along.
Before we dig into what happened, some necessary legal framework. Aliens do not have the full array of constitutional rights that American citizens can vindicate through the federal courts. Ergo, immigration enforcement is primarily left to the political branches, although there is some judicial review. What we call “immigration judges” and the “Bureau of Immigration Appeals” (BIA) are actually executive branch offices, located in the Justice Department and subordinate to the Attorney General. They are not Article III judges and courts.
Meaning: Immigration Judge (IJ) Phillip Taylor, from whom the DOJ obtained the above described, ex parte order on Thursday night, works for the DOJ.
Now, let’s get to what happened here.
As I detailed Friday evening, Judge Paula Xinis, an Obama-appointee to the federal district court in Maryland, ordered Abrego’s release on Thursday because no order of removal had been issued by IJ David M. Jones on October 10, 2019. It is the order of removal that allows the government to detain and deport an alien whose presence in the United States is illegal (a removable alien).
The entire labyrinthine Abrego litigation — featuring immigration removal actions, habeas corpus claims, and a criminal prosecution that have collectively burdened the DOJ’s immigration tribunals, the district courts of Maryland and Tennessee, the Fourth Circuit, and the Supreme Court — has been pursued by the Trump DOJ on the premise that there was an order of removal, that had been issued in 2019 coterminously with IJ Jones’s order of withholding of removal to El Salvador.
The assumption was that the order of removal authorized Abrego’s expulsion from the United States, and that the order of withholding of removal was just a caveat that Abrego, a Salvadoran, could not be repatriated to his native country. That caveat was in place because (a) Abrego had convinced Jones that he reasonably feared persecution in El Salvador, (b) the DOJ, in the first Trump administration, did not appeal that dubious ruling (it allowed Abrego to be released to live and work in Maryland), and (c) the current Trump DOJ did not (as far as is publicly known) attempt to get the caveat removed based on, among other things, changed conditions in El Salvador.
But as Judge Xinis found, no order of removal was ever issued. The court asked the government to produce it for months; prosecutors neither produced it nor provided a straightforward explanation for its absence from the record – to say nothing of an explanation why, in the absence of the order, they would suddenly arrest Abrego without notice six years after releasing him and then controversially send him to a notorious counterterrorism prison in El Salvador — the one country to which it was explicitly forbidden to deport him.
The absence of a removal order is also critical for jurisdictional purposes. It was proper for Abrego to file a habeas corpus action to challenge his illegal transfer to and detention in El Salvador. Once he had been returned to the U.S., however, it seemed that Judge Xinis should have no further role in the case. Congress has cut the district courts out of the removal process; instead, such proceedings begin with a hearing before a DOJ immigration judge, then go to the DOJ’s BIA, and finally, there is a narrow avenue of appellate review in the appropriate Circuit (with a possible but unlikely appeal to the Supreme Court).
Yet, as Xinis concluded, if there is no order of removal, then the case Abrego filed against the government cannot properly be deemed a removal proceeding. Rather, it is a habeas proceeding – a challenge claiming that, in the absence of a removal order, the government’s detention and removal of Abrego are illegal. While Xinis would have no jurisdiction to act in a removal proceeding under immigration law, federal district courts do have jurisdiction over habeas and related claims.
To repeat what I said on Friday evening,
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.[Emphasis added.]
In view of what has now happened, the only thing I can reckon is that the Trump DOJ must have figured that going to an immigration judge sometime during the last few months — in effect, starting a new removal proceeding — would be an implicit concession that it had apprehended Abrego illegally before then illegally transferring him to El Salvador (where, for reasons unclear, he was detained in an anti-terrorism prison). In the absence of a removal order authorizing Abrego’s arrest back in March, DOJ apparently decided that it was better to imply that there must be a removal order – i.e., to maintain that it would make no sense for there to be a withholding of removal order unless there were first a removal order.
While this wasn’t a forthright strategy, it wasn’t crazy, either. After all, at least for a time, Abrego himself was acting as if there must be a removal order. Why else would he offer to accept deportation to Costa Rica?
To repeat what I argued Friday, that’s an offer the DOJ should have leapt at. It would have drawn the curtain on this sorry saga. Instead, the DOJ tried to use Abrego’s desire to go to Costa Rica as leverage in plea negotiations in connection with the dubious criminal prosecution the DOJ brought in Tennessee. The DOJ’s refusal was also vindictive: The Abrego case has been an embarrassment, so rather than accommodate the Costa Rica transfer and end it, Abrego was kept in custody while the administration unsuccessfully tried to arrange his removal to African countries – which didn’t want to take Abrego and to which he didn’t want to go.
In any event, once the DOJ lost the case on Thursday, when Xinis ordered Abrego’s release, Attorney General Bondi and her subordinates apparently decided it was futile to continue resisting a concession that there never was a removal order. But rather than just beginning a new removal proceeding — for which there is a basis since there is no doubt that Abrego entered the country illegally and never obtained lawful status — the DOJ opted for chicanery.
On Thursday evening, without giving notice to Abrego’s counsel, prosecutors went to the aforementioned IJ Phillip Taylor. At a little after 7 p.m., Taylor issued an “Order of the Immigration Judge” with the subheading “Immigration Court’s Sua Sponte Order Correcting Scrivener’s Error.” According the Abrego’s lawyers:
This sua sponte order states that, in the October 10, 2019, order granting Petitioner withholding of removal, “the order of removal to El Salvador, which should have preceded the order granting him withholding of removal to El Salvador, was erroneously omitted.” … It then goes on to state: “The Immigration Court now corrects that scrivener’s error and amends the written decision in this case by adding the following: The Respondent is ordered removed to El Salvador based on the charge contained in the Notice to Appear, but the Respondent’s application for withholding of removal to El Salvador … is granted.” The Order further states that “These corrections are hereby issued nunc pro tunc to the Immigration Court’s written decision and order of October 10, 2019.”
Essentially, Taylor has tried to insert a previously absent order of removal into the 2019 document (the order of withholding of removal), label the prior absence a “scrivener’s error” (i.e., a mere clerical mistake of negligible substantive importance), and backdate the whole thing by six years (the “nunc pro tunc” provision, as if what was not there had been there all along.
Perhaps most hilarious is the assertion that this was done “sua sponte” (i.e., of the judge’s own accord). It’s as if IJ Taylor just happened to be sitting in his office on a Thursday evening, thinking about IJ Jones’s six-year-old orders (as I guess IJs are wont to do), and suddenly decided, on his own, to correct what seemed to him to be a clerical error — as opposed to being induced by Trump DOJ officials to make a substantive addition to an order, the absence of which had caused them to lose a high-profile case earlier in the day.
Abrego’s lawyers assumed this maneuver was part of a scheme to take the alien back into custody less than 24 hours after Xinis had ordered his release. Earlier on Thursday, as he was being released, the government provide Abrego with an “order of supervision,” which directed him to report to the Immigration and Customs Enforcement (ICE) office in Baltimore on Friday morning at 8 a.m. That order began by reciting (as the basis for supervision) that an order of removal had been issued regarding Abrego on October 10, 2019. Of course, the dispute now centers on the fact that no such order was issued. Consequently, it was reasonable for Abrego’s lawyers to infer that the DOJ induced Taylor to issue the “nunc pro tunc” order to shore up its basis to detain him.
Charitably, Judge Xinis observed that this was not the only rational inference. The supervision order contemplated restrictions Abrego would live under while released. It’s possible, then, the government was not planning to arrest him at the ICE office Friday morning; the DOJ may simply have been trying to patch the hole in its removal case so it can eventually deport Abrego. But just in case the plan was to arrest him, Xinis ordered – on the application of Abrego’s order – that he not be taken into custody until she heard argument from both sides.
On that score, Abrego has made an emergency motion for a restraining order. His lawyers’ application contends that the DOJ improperly induced IJ Taylor to modify the 2019 order without giving Abrego notice and an opportunity to be heard.
Moreover, they argue (correctly, I believe) that Taylor lacked jurisidiction to take any action in the immigration case. That is because Abrego earlier made an asylum application to the DOJ immigration court; that application was denied (properly so, I believe, since it is time-barred) but Abrego has appealed to the BIA, as the rules permit him to do. Once an immigration removal case is transferred to the BIA, the immigration judge is bereft of jurisdiction to act on it until the BIA makes its decision. (As we’ve discussed in other contexts, this is standard federal appellate practice: the lower court may not act on a case while the superior court is reviewing it.)
On Friday, Judge Xinis granted the emergency application barring the government from arresting and detaining Abrego until she hears from the parties. She obviously intends to expedite the matter – the government must file a submission by Sunday, Abrego must file any response by Tuesday, and a hearing could take place any time after Wednesday. While she said she is not drawing premature conclusions, Xinis seems less than impressed by IJ Taylor’s Thursday night directive, which she pointedly referred to in quotes (the “order”) six times by my count.
I suspect the “order” is living on borrowed time. Again, the DOJ can start a new removal proceeding against Abrego, or it can try to appeal Judge Xinis’s ruling that there is no order of removal (though it would now have to explain why, if there’s not one, the DOJ tried to invent one). But it’s unlikely that prosecutors will be able to “nunc pro tunc” their way out of the mess they’ve made of Abrego’s case.