The Supreme Court said Thursday that the Trump administration must “facilitate” the release of a man the government admitted it wrongly deported to El Salvador. The case went back to the judge who ordered the man’s return for further clarification of her order, leaving the ultimate fate of the case unclear.
After the Trump administration admitted that it had wrongly deported Kilmar Abrego Garcia to El Salvador, U.S. District Judge Paula Xinis in Maryland had ordered the government to “facilitate and effectuate” his return by 11:59 p.m. on Monday. A federal appellate panel declined the administration’s request to halt the judge’s order, but Chief Justice John Roberts temporarily granted the request on the afternoon of that midnight deadline, pending further word from him or the full high court.
That word came Thursday with an order that said Xinis had properly required the government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. But the order also said that the “intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority,” adding: “The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
In a statement accompanying Thursday’s order, the court’s three Democratic appointees said they would’ve declined to intervene in this litigation and effectively held the government to the judge’s directive.
“Nevertheless, I agree with the Court’s order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “That means the Government must comply with its obligation to provide Abrego Garcia with ‘due process of law,’ including notice and an opportunity to be heard, in any future proceedings.”
“In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law,” Sotomayor added, with “remand” referring to the process of a case being sent back to a lower court.
After the Supreme Court issued the order, Xinis quickly amended her order to “DIRECT that Defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” She told the government to file a declaration addressing: “(1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate Abrego Garcia’s immediate return to the United States; and (3) what additional steps Defendants will take, and when, to facilitate his return.”
Xinis initially set a deadline for the government to file its declaration by 9:30 a.m. ET on Friday but extended the deadline two hours after the government filed a motion seeking to delay that deadline and to push a hearing on the matter the judge had set for 1 p.m. ET on Friday to next week. Xinis declined to delay the hearing.
In their response on Friday, Justice Department lawyers said they “are not in a position where they ‘can’ share any information requested by the court” and called the judge’s deadline “impracticable.”
The Supreme Court split 5-4 on Monday in a separate appeal to grant the Trump administration emergency relief in its use of the Alien Enemies Act to conduct deportations. Dissenting in that case, Sotomayor cited Abrego Garcia’s then-pending case to warn about the dangerous nature of the government’s position that it doesn’t have to return erroneously deported people.
Notably, the court said in that case that people facing deportation under the Alien Enemies Act are still entitled to due process.
In a filing to the justices on Tuesday, Abrego Garcia’s lawyers cited Monday’s Alien Enemies Act ruling in writing that, while his case doesn’t involve that act, the court’s due process protection in that case “supports Abrego Garcia’s position that the Government violated his due process rights by removing him to El Salvador.” They wrote that the justices’ unanimous insistence on due process “underscores that Abrego Garcia — who was removed without reasonable notice or an opportunity to challenge his removal before it occurred, and in conceded violation of a court order prohibiting his removal to that country — must have a remedy for this constitutional violation.”
This post has been updated throughout to reflect additional developments in the litigation.
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