The Trump administration did something interesting: It signaled it’s going to comply with a court order to facilitate a wrongly deported man’s return. While highlighting how low the bar is for this administration, the move is notable for standing in contrast to the government’s resistance in other cases, including in the ongoing saga of Kilmar Abrego Garcia.
This latest case involves a gay Guatemalan man identified in court papers as O.C.G., who, his lawyers said, fled his country to avoid persecution due to his sexual orientation. An immigration judge barred his removal to Guatemala, after which agents sent him to Mexico, even though he had said that he was targeted and raped there.
The government represented to the court that O.C.G. was asked whether he was afraid of being sent to Mexico and said no, but when it came time to prove that, the administration told the court that it actually didn’t have a witness who could back it up.
On Friday, U.S. District Judge Brian Murphy ordered the government to facilitate O.C.G.’s return to the U.S., writing that officials’ “retraction of their prior sworn statement makes inexorable the already-strong conclusion that O.C.G. is likely to succeed in showing that his removal lacked any semblance of due process.” The Biden appointee wrote that O.C.G. is currently in hiding in Guatemala after he was sent back there from Mexico.
In a status report Wednesday, the government said that immigration officials made contact with O.C.G.’s lawyers over the weekend and are working to bring him back to the U.S.
It should go without saying that it’s a good thing for the government to comply with a court order, just as it should go without saying that no congratulations are due for obeying the law, especially when we’re talking about the entity tasked with enforcing the law.
Still, the government’s relatively normal behavior in its latest filing raises the question: Why not return Abrego Garcia (who was illegally deported to El Salvador) or yet another man held in that country (identified in court papers as “Cristian”) whose return another judge ordered the government to facilitate? These other cases are the subject of separate ongoing litigation.
There’s no good justification for failing to right a wrong in any case. But a key difference between O.C.G.’s situation and the others is that the latter are being detained by a foreign government (to be sure, only after the U.S. sent them there in cooperation with that foreign government).
Murphy noted the distinction in his opinion ordering the facilitation of O.C.G.’s return. He wrote, “The Court notes that ‘facilitate’ in this context should carry less baggage than in several other notable cases. O.C.G. is not held by any foreign government.”
Likewise, O.C.G.’s lawyers wrote in support of their facilitation motion, “Notably, ordering DHS to facilitate return in this case does not include the alleged complications involved in Abrego Garcia, where the plaintiff remains detained by a foreign government at the behest of the United States.” While it’s worth highlighting that Trump administration officials even claim to be working to remedy a wrongful deportation, this latest news seems to stand as more of an aberration than a change in the administration’s legal policy. In fact, the administration this week launched an emergency Supreme Court appeal in the broader case that Judge Murphy is overseeing, which involves the issue of removing people to so-called third countries where they aren’t from (O.C.G. is a plaintiff in that case). Murphy had intervened in the government’s bid to send migrants to war-torn South Sudan, finding that officials sought to carry out the removals without providing sufficient notice and opportunity to challenge them. Seeking to upend Murphy’s injunction while those migrants are held at a U.S. military base in Djibouti, the administration wrote to the high court that the judge “usurp[ed] the Executive’s authority over immigration policy” and that his injunction “disrupts sensitive diplomatic, foreign-policy, and national-security efforts.” The plaintiffs’ Supreme Court response is due June 4. 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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