The Trump administration petitioned the Supreme Court Monday to lift a lower court order instructing the US government to return a Maryland man erroneously shipped to a notoriously brutal mega-prison in El Salvador.
On Friday, a federal judge gave the White House until 11:59 p.m. Monday to return to American soil Kilmar Abrego Garcia, who officials claimed was deported due to an “administrative error” and a “clerical error.”
A 2019 immigration judge’s ruling restricted Abrego Garcia from being deported to El Salvador because he could face persecution, including from the Barrio 18 gang. The White House alleges that Abrego Garcia is a member of MS-13 — something his relatives deny.
“The United States cannot guarantee success in sensitive international negotiations in advance, least of all when a court imposes an absurdly compressed, mandatory deadline that vastly complicates the give-and-take of foreign-relations negotiations,” Solicitor General John Sauer wrote in the petition.
“The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge’s bidding.”
Abrego Garcia’s wife and 5-year-old child are both American citizens. Last month, authorities sent Abrego Garcia to El Salvador alongside about 260 other migrants whom it accused of gang ties.
Trump had invoked wartime powers under the 18th-century Alien Enemies Act to rapidly deport organized crime members to El Salvador’s Terrorism Confinement Center (CECOT), which has been accused of human rights violations.
The president’s use of the 1798 law has been halted by federal courts amid ongoing litigation, and the administration has asked the high court to nix that block as well.
Soon after Trump’s team filed the Monday petition to the Supreme Court, a three-judge panel on the Richmond, Va.-based Fourth Circuit Court of Appeals unanimously rejected the administration’s request to scrap the ruling.
Greenbelt, Md., US District Judge Paula Xinis, an appointee of President Barack Obama who initially ordered Abrego Garcia’s return Friday, found that the Trump administration “offered no evidence linking [him] to MS-13 or to any terrorist activity.”
Administration officials claimed the deportee was “confirmed to be a ranking member of the MS-13 gang by a proven and reliable source.” They also alleged that he entered the country illegally in 2011 and originally came from El Salvador.
Xinis further rejected a request from the Trump administration to stay her order while appeals played out.
“[The administration] do indeed cling to the stunning proposition that they can forcibly remove any person — migrant and U.S. citizen alike — to prisons outside the United States, and then baldly assert they have no way to effectuate return because they are no longer the ‘custodian,’ and the court thus lacks jurisdiction,” she chided.
Abrego Garcia’s lawyers insist he doesn’t have a criminal record and have alleged that since 2006, gang members have threatened to abduct and kill him to extort money from his parents back in Central America.
They claim that immigration authorities apprehended Abrego Garcia while he was in a car at an Ikea parking lot on March 12 while his son was in the back seat.
Sauer ripped Xinis’ decision, saying in court filings Monday that it was “unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight.”
“While the United States concedes that removal to El Salvador was an administrative error,” he added, “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 petition will be reviewed by Chief Justice John Roberts, who has initial jurisdiction over appeals stemming from the 4th Circuit.
It is not clear how or whether the Trump administration will attempt to comply with Xinis’ order, though it could arrange for Abrego Garcia to be taken to the US Embassy in San Salvador until the matter is resolved.
