The Order by the Supreme Court in the matter of Kilmar Garcia, the MS-13 member sent to El Salvador because of an error by DHS -- overlooking an Order granting "Withdrawal of Removal" which allowed his deportation to any place EXCEPT El Salvador -- is being widely mischaracterized by opponents of the Trump Administration.
I was traveling all day yesterday or I would have address the issues raised by the order more promptly.
Having been able to read the Order more carefully now, as is often the case with these kinds of Orders on the Court's "emergency docket" that come from motions before the case reaches SCOTUS, yesterday's Order is almost as important for what it doesn't say as for what it does say.
The Order is relatively short, and none of the Justices filed a dissenting statement. So, in that regard, it can be said that the Court was unanimous in its view.
First, the only issue in this case is what to do with Mr. Garcia's right, pursuant to an Immigration Judge's Order, to not be returned to El Salvador via U.S. Govt action -- which is what happened.
As Chief Justice Roberts did in earlier district court order in the USAID funding case with a "ticking clock" for the Admin. to act pursuant to a court order, he stopped that clock with a stay just prior to the deadline being reached. Now -- as before -- the Court has taken the position that the deadline in the Court's order has passed, so that aspect is moot. No more Court-imposed time deadlines that interfere with the Administration's ability to take the steps it is being ordered to take where the deadline compromises the effort.
Just as the Court directed the district judge in the earlier case to provide more clear guidance to the Administration on precisely what it needed to do to comply with the TRO issued in that case, the Court has done the same thing with respect to Mr. Garcia.
The district judge's order is that the Administration -- which has conceded its error -- “facilitate and effectuate the return of [Abrego
Garcia] to the United States by no later than 11:59 PM on Monday, April 7.”
The Court's Order states that since the deadline came and went while CJ Robert's Administrative Stay was in place, the "the deadline in the challenged order is no longer effective." The Court does not make reference to the imposed deadline again -- which is a way of communicating to the lower court judge "Don't set deadlines and force us to act again."
The Court then turned its attention to the words used in the order -- "facilitate and effectuate."
As to the former, the same problem persists as was true in the earlier USAID case -- what precisely did the district judge mean by this? The Court says explicitly the lower court order "requires clarification on remand."
So the lower court order was not vacated -- meaning that the district judge can continue the case in search of a remedy for Garcia's illegal removal. But the lower court must be specific as to what that remedy is.
This is the part that is maddening to non-practitioners, particularly those who don't make a hobby of studying how the SCOTUS does its work.
Everyone believes it would be simpler if the 9 Justices just made that decision themselves and published an Order telling the Administration what to do -- or not do. But that is not the way the process works. The SCOTUS does not bring witnesses before it to get testimony about the facts of a case and then resolve conflicts among conflicting factual information. That is the function of lower courts.
It is mid-April. The Court has 11 weeks left in its current term. It has dozens of cases that have been argued and submitted, and it must decide those cases and publish opinions over that time period. In other words, it has its job still to do and it cannot allow itself to be diverted into doing the jobs assigned to lower courts.
"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."
Get him released from custody, and 2) handle the case as it would have been had he not been sent to El Salvador.
Getting him out of custody is not the same as returning him to the US. Garcia is in the El Salvadoran prison not because the El Salvadoran Govt sent him there, he's in the prison because the US Govt is paying El Salvador to hold him there on behalf of the US Govt.
Getting him out of custody should be simply a matter of ending the arrangement between the two that pays El Salvador to keep him in the prison.
The second part -- handle the case as would have been done in the US -- is simpler than it appears.
First option: there seems to be no dispute that he was subject to an Order of Removal. The mistake of sending him to El Salvador can be corrected by simply sending him to another country. The complication there is that he must be accepted by the third country. You can't simply ship a non-citizen to a third country without that country's agreement to receive him.
Second option: reopen his immigration case before an Immigration Judge and eliminate the "Withdrawal of Removal." This can be done by establishing with new evidence that the basis for imposing the "Withdrawal of Removal" in 2019 is no longer a matter of concern.
Although the Order is not precise, Garcia was granted "Withdrawal of Removal" because of his supposed fear he would be the subject of violent retaliation by the 18th Street Gang in the neighborhood where his family lives. This is a gang that has its origins in the US and Mexico, but has now spread throughout Central America. It is a rival to the MS-13 gang in El Salvador that was founded there, and has now spread throughout Central America and into the United States.
But, the 18th Street Gang has been largely wiped out and imprisoned by current Salvadoran President Bukele. The situation is much different than was the case in 2019 when Garcia was granted his request to not be deported back to El Salvador.
The Motion to Reopen is made to the Immigration Court, not the district court in Maryland. That district court has no jurisdiction over removal proceedings.
Soooooo -- Option 2 is to send an Immigration Judge to the U.S. Embassy in El Salvador, bring Garcia to the Embassy, and have a hearing to reopen his case and delete the "Withdrawal" from his Removal Order. That provides him the due process he would have been entitled to in the U.S.
Then he can be escorted to the front door of the Embassy, and released as a citizen of El Salvador in El Salvador.
Let's go back to the SCOTUS Order:
"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."
This is a polite way of the Court letting the district judge know that "If what you mean is bringing Garcia back into the United States to appear in your courtroom, you don't have the authority to order that. So be careful in how you clarify your prior order."
Finally, I suspect that the Court's direction to the Administration that "the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further
steps" is actually just advice to not repeat the errors involving a lack of candor with the district judge as happened in the TdA case with Judge Boasberg. That only creates a "Clean up on Aisle 4" situation that SCOTUS is going to be expected to fix.
The Court's 5-6 conservatives are much more likely to back the Admin. efforts in the immigration arena if the Administration doesn't play games in the lower courts in terms of the information is provides and doesn't provide. Be clear about what is taking place, and make a clear record about what was done.
The Order by the Supreme Court in the matter of Kilmar Garcia, the MS-13 member sent to El Salvador because of an error by DHS -- overlooking an Order granting "Withdrawal of Removal" which allowed his deportation to any place EXCEPT El Salvador -- is being widely mischaracterized by opponents of the Trump Administration.
I was traveling all day yesterday or I would have address the issues raised by the order more promptly.
Having been able to read the Order more carefully now, as is often the case with these kinds of Orders on the Court's "emergency docket" that come from motions before the case reaches SCOTUS, yesterday's Order is almost as important for what it doesn't say as for what it does say.
The Order is relatively short, and none of the Justices filed a dissenting statement. So, in that regard, it can be said that the Court was unanimous in its view.
First, the only issue in this case is what to do with Mr. Garcia's right, pursuant to an Immigration Judge's Order, to not be returned to El Salvador via U.S. Govt action -- which is what happened.
As Chief Justice Roberts did in earlier district court order in the USAID funding case with a "ticking clock" for the Admin. to act pursuant to a court order, he stopped that clock with a stay just prior to the deadline being reached. Now -- as before -- the Court has taken the position that the deadline in the Court's order has passed, so that aspect is moot. No more Court-imposed time deadlines that interfere with the Administration's ability to take the steps it is being ordered to take where the deadline compromises the effort.
Just as the Court directed the district judge in the earlier case to provide more clear guidance to the Administration on precisely what it needed to do to comply with the TRO issued in that case, the Court has done the same thing with respect to Mr. Garcia.
The district judge's order is that the Administration -- which has conceded its error -- “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.”
The Court's Order states that since the deadline came and went while CJ Robert's Administrative Stay was in place, the "the deadline in the challenged order is no longer effective." The Court does not make reference to the imposed deadline again -- which is a way of communicating to the lower court judge "Don't set deadlines and force us to act again."
The Court then turned its attention to the words used in the order -- "facilitate and effectuate."
As to the former, the same problem persists as was true in the earlier USAID case -- what precisely did the district judge mean by this? The Court says explicitly the lower court order "requires clarification on remand."
So the lower court order was not vacated -- meaning that the district judge can continue the case in search of a remedy for Garcia's illegal removal. But the lower court must be specific as to what that remedy is.
This is the part that is maddening to non-practitioners, particularly those who don't make a hobby of studying how the SCOTUS does its work. Everyone believes it would be simpler if the 9 Justices just made that decision themselves and published an Order telling the Administration what to do -- or not do. But that is not the way the process works. The SCOTUS does not bring witnesses before it to get testimony about the facts of a case and then resolve conflicts among conflicting factual information. That is the function of lower courts.
It is mid-April. The Court has 11 weeks left in its current term. It has dozens of cases that have been argued and submitted, and it must decide those cases and publish opinions over that time period. In other words, it has its job still to do and it cannot allow itself to be diverted into doing the jobs assigned to lower courts.
"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."
Getting him out of custody is not the same as returning him to the US. Garcia is in the El Salvadoran prison not because the El Salvadoran Govt sent him there, he's in the prison because the US Govt is paying El Salvador to hold him there on behalf of the US Govt.
Getting him out of custody should be simply a matter of ending the arrangement between the two that pays El Salvador to keep him in the prison.
The second part -- handle the case as would have been done in the US -- is simpler than it appears.
First option: there seems to be no dispute that he was subject to an Order of Removal. The mistake of sending him to El Salvador can be corrected by simply sending him to another country. The complication there is that he must be accepted by the third country. You can't simply ship a non-citizen to a third country without that country's agreement to receive him.
Second option: reopen his immigration case before an Immigration Judge and eliminate the "Withdrawal of Removal." This can be done by establishing with new evidence that the basis for imposing the "Withdrawal of Removal" in 2019 is no longer a matter of concern.
Although the Order is not precise, Garcia was granted "Withdrawal of Removal" because of his supposed fear he would be the subject of violent retaliation by the 18th Street Gang in the neighborhood where his family lives. This is a gang that has its origins in the US and Mexico, but has now spread throughout Central America. It is a rival to the MS-13 gang in El Salvador that was founded there, and has now spread throughout Central America and into the United States.
But, the 18th Street Gang has been largely wiped out and imprisoned by current Salvadoran President Bukele. The situation is much different than was the case in 2019 when Garcia was granted his request to not be deported back to El Salvador.
The Motion to Reopen is made to the Immigration Court, not the district court in Maryland. That district court has no jurisdiction over removal proceedings.
Soooooo -- Option 2 is to send an Immigration Judge to the U.S. Embassy in El Salvador, bring Garcia to the Embassy, and have a hearing to reopen his case and delete the "Withdrawal" from his Removal Order. That provides him the due process he would have been entitled to in the U.S.
Then he can be escorted to the front door of the Embassy, and released as a citizen of El Salvador in El Salvador.
Let's go back to the SCOTUS Order:
"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."
This is a polite way of the Court letting the district judge know that "If what you mean is bringing Garcia back into the United States to appear in your courtroom, you don't have the authority to order that. So be careful in how you clarify your prior order."
Finally, I suspect that the Court's direction to the Administration that "the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps" is actually just advice to not repeat the errors involving a lack of candor with the district judge as happened in the TdA case with Judge Boasberg. That only creates a "Clean up on Aisle 4" situation that SCOTUS is going to be expected to fix.
The Court's 5-6 conservatives are much more likely to back the Admin. efforts in the immigration arena if the Administration doesn't play games in the lower courts in terms of the information is provides and doesn't provide. Be clear about what is taking place, and make a clear record about what was done.