Is yet another wrongful deportation case on its way to the Supreme Court? It could be, after a divided appellate panel on Monday rejected the Trump administration’s bid to lift an order to “facilitate” a man’s return from El Salvador. This isn’t the still-unresolved case of Kilmar Abrego Garcia but yet another case where a judge has ordered the government to rectify a wrongful removal.
Monday’s ruling from the U.S. Court of Appeals for the 4th Circuit came in the case of a Venezuelan national identified by the pseudonym “Cristian” in court papers.
U.S. District Judge Stephanie Gallagher ordered the facilitation of his return so that his asylum application can be decided here. Cristian was part of a class action lawsuit from 2019 brought by people who came to the U.S. as unaccompanied minors and later sought asylum. They wanted their applications to be decided while they remained in the U.S. There was a settlement in the case, but the government still sent Cristian to El Salvador with scores of others in March, before his application was decided.
His lawyers said he is being held in Centro de Confinamiento del Terrorismo (CECOT), the notorious Salvadoran prison known for human rights violations.
The Trump administration asked the 4th Circuit to lift Gallagher’s order while its appeal is pending. A three-judge panel declined to do that, splitting 2-1 with a Trump appointee dissenting.
The government cited Trump’s invocation of the Alien Enemies Act to deport alleged Venezuelan gang members. Administration lawyers argued that Trump’s invocation of the 1798 act meant it didn’t have to wait for a decision on Cristian’s asylum application to remove him. They argued that facilitating his return would cause the government “irreparable harm” because it would undermine Trump’s authority under the wartime act.
But the appellate panel majority said that argument ignores the Supreme Court’s ruling in Abrego Garcia’s case, which approved another judge’s order requiring the facilitation of his return.
The government also tried to show that Cristian would lose his asylum claim anyway, citing an “Indicative Asylum Decision.” The 4th Circuit majority noted that the decision was made five days after Gallagher ordered the government to facilitate Cristian’s return; his lawyers called it a “litigation-driven” document and a “contrivance” that was “created just for this case.” The panel majority said the government “has no response to this charge — a deafening silence.”
In the 4th Circuit majority were Judges DeAndrea Gist Benjamin, a Biden appointee, and Roger Gregory, who was nominated by both Bill Clinton and George W. Bush. The trial judge in this case, Gallagher, was appointed by Trump after her nomination by Barack Obama expired. Her nomination was supported by Sen. Chris Van Hollen, D-Md., who famously visited Abrego Garcia in El Salvador. In his own separate opinion Monday, Gregory took aim at Trump’s Alien Enemies Act invocation. He wrote that “the government’s argument in this case is that this plainly invalid invocation of the Act can be used to void any and all contractual obligations of the federal government. That cannot be — and is not — the rule of law.” Gregory joined a growing chorus of judges around the country who have almost uniformly deemed Trump’s invocation invalid. While the Supreme Court on Friday extended a block on carrying out deportations under the act, the justices haven’t yet decided the underlying legality of Trump’s invocation. Though Monday’s 4th Circuit ruling wasn’t directly about whether the invocation is legal, Gregory’s opinion bolsters the already-lopsided it’s illegal camp. Dissenting from the 4th Circuit panel on Monday was Judge Julius Richardson. The Trump appointee wrote, “Many options may be available to district courts seeking to craft appropriate relief in response to deportations they find unlawful. But directing diplomatic negotiations to the Executive Branch is not among them.” If the administration presses this case further to the Supreme Court, it wouldn’t be surprising to see this language in the government’s application to the justices seeking emergency relief. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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