Appeals court excoriates Trump administration in illegal deportation case
In a legal battle with escalating tensions, the U.S. Court of Appeals for the 4th Circuit on Thursday excoriated the Trump administration for its defiance of a federal judge’s orders that it show how it is facilitating the return of Kilmar Abrego García, a Maryland man who was illegally deported to a notorious prison in El Salvador.
“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all,” the appeals court said in its quick denial of a Department of Justice motion to pause U.S. District Judge Paula Xinis’s orders, a request the appeals court called “extraordinary and premature.”
“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” the appeals court decision said. “Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.”
The ruling, from a three-judge panel and authored by Reagan appointee J. Harvie Wilkinson III, came after the Justice Department argued in its motion that Xinis’s orders have “flouted” a Supreme Court mandate last week to act with deference toward the administration in the case of Abrego García when it comes to foreign affairs.
The Trump administration’s request to stay the case, which it may now appeal to the Supreme Court, hinges largely on the meaning of the word “facilitate.” Xinis and the Justice Department have disagreed on the definition in a case with far-reaching implications surrounding the Trump administration’s argument that, once it illegally removes someone to a foreign country, that person is beyond the reach of the U.S. federal court system for any recourse.
“The federal courts do not have the authority to press-gang the President or his agents into taking any particular act of diplomacy,” the Justice Department said in a Wednesday court filing that was posted online Thursday.
In this case, the Trump administration alleges that Abrego García, 29, is a member of the MS-13 transnational gang, which it has designated a foreign terrorist organization—an assertion administration officials have aggressively pushed on social media and other venues in recent days. Abrego García’s family and lawyers deny this, and he appears to have no criminal record in either the United States or El Salvador.
Abrego García is married to a U.S. citizen and had lived in the United States since fleeing El Salvador as a teenager after Barrio 18 gang members there attempted to extort his family and, then, recruit him and an older brother into their ranks. He was sent back despite an immigration judge’s order prohibiting his deportation back to El Salvador—a humanitarian protection called “withholding of removal”—in a ruling based on his fears of being persecuted by that gang.
President Donald Trump said on Monday that he is open to sending U.S. citizens to a Salvadoran prison if they have committed violent criminal acts. He did not say whether that would involve legal due process for the accused, a treatment not afforded to Abrego García before U.S. officials flew him to El Salvador last month along with more than 200 other men in defiance of another federal judge’s order.
The Supreme Court’s order largely affirmed an April 4 order by Xinis directing Trump administration officials to “facilitate and effectuate” Abrego García’s return.
The administration has claimed the Supreme Court’s ruling as a victory, focusing on a line in the 9-0 decision that instructs the federal court in Maryland to act with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
In light of that deference, the Supreme Court expressed concern about Xinis’s instruction to “effectuate” Abrego García’s return. But the high court said Xinis’s order “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.”
Trump administration officials say the Supreme Court’s decision requires only that they allow Abrego García to return to the U.S. should he be released by the government of El Salvador, not that they take steps to encourage his release from that country’s Terrorism Confinement Center, a megaprison infamous for its harsh conditions in which as many as 70 people are forced to share a cell.
“In the setting of a case involving a citizen of a foreign sovereign, who is a member of a foreign terrorist organization, held in the domestic custody of that sovereign, there is no question that the Executive’s foreign affairs powers are at their apex,” the Justice Department’s filing on Wednesday said.
The appeals court in its decision Thursday said that whether Abrego García is a gang member is irrelevant to the current case, a federal lawsuit by his family that challenged his removal. “Regardless, he is still entitled to due process,” the appeals court said.
The appeals court said the administration’s argument that its responsibility ends with removing domestic barriers to Abrego Garcia’s return “is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.”
“ ‘Facilitation’ does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here,” the appeals court decision said. “Allowing all this would ‘facilitate’ foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”
In the wake of the Supreme Court’s decision last week, Xinis has tried to force the Trump administration to provide information about its efforts, or lack thereof, to facilitate Abrego García’s release. In an order on Tuesday, she said she’ll require administration officials to produce records and submit to questioning under oath.
In response to Xinis’s order, Abrego García’s lawyers have asked for depositions next week from: Michael G. Kozak, a senior State Department official; Robert L. Cerna II, an acting field office director at U.S. Immigration and Customs Enforcement; Joseph N. Mazzara, acting general counsel of the U.S. Department of Homeland Security; and Evan C. Katz, an assistant director at ICE.
The Justice Department argued in its filing Wednesday that the demands for information, known as discovery, improperly intrude on the president’s powers and amount to a “fishing expedition.”
“If there is ever a situation where the federal courts should be especially careful about intruding on the exclusive foreign relations powers of the President, it should be in the context of facilitating the return of a member of a foreign terrorist organization presently being held in another land,” the filing said.
Abrego García’s lawyers did not immediately comment Thursday about the appeal but said in a statement Wednesday they would “continue to fight for our client’s safe return and to ensure his constitutional rights are fully restored.” They also had yet to respond in court to the administration’s latest arguments. But in a filing last week they said administration officials are defying both Xinis’s and the Supreme Court’s orders and called for contempt proceedings against the officials, a request Xinis said Tuesday she would consider.
Amid the showdown between the judicial and executive branches, Thursday’s appeal’s court decision said “it is all too possible to see in this case an incipient crisis, but it may present an opportunity as well.”
“We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos,” the decision said. “This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”
Aaron Schaffer contributed to this report.
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