The Trump administration asked the Supreme Court to intervene Monday and block a lower-court order mandating the return of an immigrant mistakenly deported to El Salvador in a high-profile challenge to the administration’s immigration crackdown.
Kilmar Armando Abrego Garcia and his family filed a lawsuit in Maryland federal court, arguing that the removal violated an immigration judge’s 2019 order that he not be deported to El Salvador due to possible persecution. Abrego Garcia has never been charged with or convicted of a crime, the family argued, and was deported illegally.
The Trump administration sent Abrego Garcia to a high-security Salvadorian prison known as CECOT last month, as part of an agreement where the U.S. pays the Salvadorian government to imprison deportees.
The Trump administration acknowledged that it violated the order through “administrative error,” but told the Maryland federal judge that the federal government no longer had the ability to return Abrego Garcia to the U.S.
Judge Paula Xinis for the U.S. District Court for the District of Maryland ordered the Trump administration to return Abrego Garcia to the United States by Monday evening.
Earlier Monday, a unanimous three-judge decision from the U.S. Court of Appeals for the 4th Circuit upheld that judge’s order to return Garcia to the United States.
“The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” Judge Stephanie Thacker wrote.
Judge Harvie Wilkinson III of the 4th Circuit wrote that there is “no question that the government screwed up here.”
He also warned about the sweeping legal arguments the Trump administration made in the case – that federal agents could detain and deport someone without due process, then argue it’s too late for the courts to intervene.
“It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone,” Wilkinson wrote.
In the Supreme Court application, the Trump administration argued that Abrego Garcia is allegedly a member of MS-13, which the administration has designated as a terrorist organization, and that he was subject to removal — just not to El Salvador.
Even though the federal government made an error, “that does not license district courts to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight,” the administration’s application said.
The administration argued that a lower-court judge trampled presidential authority to order the return Abrego Garcia to the country.
“This order — and its demand to accomplish sensitive foreign negotiations post-haste, and effectuate Abrego Garcia’s return tonight — is unprecedented and indefensible,” D. John Sauer, the newly confirmed solicitor general, wrote.
On Monday afternoon, Chief Justice John G. Roberts Jr. ordered a temporary pause in the order to return Abrego Garcia and asked his lawyers to respond by Tuesday afternoon.
In their response at the Supreme Court, Abrego Garcia’s attorneys argued that he has never been charged with any crime and sits in the Salvadorian prison “as the product of a Kafka-esque mistake.”
They argued that Abrego Garcia has lived peacefully in the U.S. for years and raised a family, including three special needs children. The response said Abrego Garcia’s family has not heard from him directly since he was deported, but recognized him in photographs of inmates at the prison, which is one of the most dangerous in the world.
“The Government’s contention that he has suddenly morphed into a dangerous threat to the republic is not credible,” the attorneys wrote. “The Executive branch may not seize individuals from the streets, deposit them in foreign prisons in violation of court orders, and then invoke the separation of powers to insulate its unlawful actions from judicial scrutiny.”
The case is Kristi Noem et al. v Kilmar Armando Abrego Garcia et al.
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