Kilmar Abrego Garcia, a lawful immigrant from El Salvador was - all admit - mistakenly seized, taken in a planeload of Venezuelan deportees, and abandoned to the mercies of a Salvadoran prison for alleged "terrorists".
On Apr. 4, Judge Paula Xinis wrote that “issuance of a preliminary injunction without further delay is necessary … to avoid ongoing irreparable harm,” and ordered the government to effectuate his return to the United States by 11:59PM April. 7.
The Trump Justice Department appealed.
On April 10, 2025 the United States Supreme Court began its opinion this way:
On March 15, 2025, the United States removed Kilmar Armando Abrego Garcia from the United States to El Salvador, where he is currently detained in the Center for Terrorism Confinement (CECOT). The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal. The United States represents that the removal to El Salvador was the result of an “administrative error.” The United States alleges, however, that Abrego Garcia has been found to be a member of the gang MS–13, a designated foreign terrorist organization, and that his return to the United States would pose a threat to the public. Abrego Garcia responds that he is not a member of MS–13, and that he has lived safely in the United States with his family for a decade and has never been charged with a crime.
The order properly requires 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. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.
April 14 El Salvador’s President Bukele and ours – Donald
Trump met at the White House.
Josh Marshall (Talking Points Memo)
The pair of strongmen told reporters they would not seek the
release of Kilmar Abrego Garcia, a Salvadoran citizen deported from the U.S.
last month during a hastily executed operation that also removed more than 100
Venezuelans under the Alien Enemies Act.
Bukele and senior Trump officials indicated they felt no
obligation to comply with court orders. Bukele suggested at one point he had
received no U.S. request to release Abrego Garcia, saying that doing so would
be to “smuggle” him into the country. Trump advisor Stephen Miller argued the
courts had no authority to compel the government to act in matters of foreign
relations.
On Apr. 15, District Judge Xinis granted the motion for expedited discovery. The Judge wrote, “Defendants therefore remain obligated, at a minimum, to take the steps available to them toward
aiding, assisting, or making easier Abrego Garcia’s release from custody in El Salvador and
resuming his status quo ante. But the record reflects that Defendants have done nothing at all.”
On Apr. 17, the Fourth Circuit denied the Defendant’s appeal in a 7-page order.
J. Harvie Wilkinson, a Reagan nominee, has served on the Court of Appeals since 1984!
He is considered a "feeder judge" whose Clerks often advance to clerkships on the United States Supreme Court.
FILED: April 17, 2025
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 25-1404 (8:25-cv-00951-PX)
KILMAR ARMANDO ABREGO GARCIA; JENNIFER STEFANIA VASQUEZ SURA; A.A.V., a minor, by and through his next friend and mother, Jennifer Vasquez Sura, Plaintiffs – Appellees,
v.
KRISTI NOEM; TODD LYONS; KENNETH GENALO; NIKITA BAKER; PAMELA JO BONDI; MARCO RUBIO, Defendants – Appellants.
WILKINSON, Circuit Judge, with whom KING and THACKER, Circuit Judges, join: Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal).
Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
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