In a rare act of unanimity, the Supreme Court on Thursday night ruled that government officials must take some unspecified steps to try to bring back to the U.S. a Maryland man sent illegally to a brutal prison in his home country, El Salvador.
The order, quite unusual for an often-split Court, set no deadlines for the return home of 24-year-old Kilmar Armando Abrego Garcia of Hyattsville. The order also included a clear gesture of respect for President Trump’s powers – a gesture that could limit what a federal trial judge in Greenbelt, Md., can actually do to undo the Marylander’s imprisonment outside of the U.S. or to arrange his return.
The case is a major test of the Trump Administration’s massive nationwide campaign to round up and deport non-citizens, often carried out without any legal formalities.
The Supreme Court’s two-page order left it to U.S. District Judge Paula Xinis to “clarify” her order of last week that federal officials must make an effort to get Abrego Garcia released and returned. He has been in prison for 26 days, the result of what government officials say was an “administrative error.” Since an immigration judge’s ruling six years ago, he has been protected against deportation to El Salvador. He was arrested last month and, three days later, was flown to the El Salvador prison.
The judge ruled that he was arrested “without legal basis” last month, and that he was swiftly sent to El Salvador “without further process or legal justification.”
Judge Xinis ordered immigration officials to “facilitate and effectuate” his return. The Supreme Court, apparently seeing some difference between those two words, upheld the order to “facilitate” Abrego Garcia’s release from custody in El Salvador, but it told Judge Xinis to clarify the term “effectuate.” In doing so, the judge was told, she must show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” That part of her order, the Justices said, “may exceed [the judge’s] authority.”
It was not clear what restrictions that phrasing actually will put on Judge Xinis as the case returns to her court. But the Trump Administration, in its filing with the Justices, had complained that her order was interfering with presidential power to carry out diplomatic dealings with a foreign nation. The Administration also argued that El Salvador may have its own legal system and that might limit what the U.S. government could do to get his release and return.
The Court also gently urged the Administration to “be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
The government contends that the Marylander was a member of a violent gang, M-13, a claim that he specifically denies. He has not been convicted of any crime in the decade he has lived in the U.S.
Besides partially supporting and partially questioning what the judge had ordered, the Supreme Court upheld the part of Judge Xinis’ order that Administration officials in further dealings with Abrego Garcia must “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
The order, however, did not specify what that phrasing meant that the government must do. However, Justice Sonia Sotomayor, in a separate opinion speaking for herself and Justices Ketanji Brown Jackson and Elena Kagan, said that it means that Abrego Garcia at some point must be given formal notice of any plan to deport him and a hearing at which he can contest deportation. Sotomayor said that he also must be given an opportunity to show that he faces torture while he is in El Salvador; he has claimed that his family tortilla business there was repeatedly threatened by gangs, and that he personally fears persecution in that country.
The three Justices also argued that every facet of his case “weighs against the government,” and thus they would have refused to have the Court get involved at all at this stage.
The Court’s order was unsigned, and no dissents were noted, so it apparently had the full support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Those joining the Sotomayor separate opinion did not call their opinion a dissent, but what they wrote plainly meant that they would not have given Judge Xinis new instructions and would have allowed the case to continue to unfold in lower courts. Judge Xinis’ rulings had been upheld by a federal appeals court.
The case in which the Marylander’s lawyers are seeking remedies for his deportation and imprisonment are still in a preliminary stage. Abrego Garcia has also sought asylum which, if granted, would allow him to remain in the country. He lives with his fiancé, who is expecting a child shortly.
