Progress on the Abrego Garcia Case
A scathing opinion from the Fourth Circuit, proof of life, and depravity from the White House
Fourth Circuit for the Win!
I have written about the lawless renditions by the Trump administration of people they have deemed “alien terrorists” and shipped to a gulag in El Salvador. I was concerned that too many people simply would not care, and for awhile that was true. But then we heard the story of one man in particular — Kilmar Armando Abrego Garcia — an undocumented immigrant from El Salvador who was living in Maryland with his U.S. citizen wife and children, when he was snatched off the streets by ICE agents and shipped to El Salvador, despite a prior court order that under no circumstances was he to be deported there because his life would be in danger.
Litigation ensued and at a hearing before the district court, the government admitted that the deportation was an “administrative error” but insisted that nothing could be done. The judge, Paula Xinis, was not having it, and ordered the government to take all necessary steps to “facilitate and effectuate” Abrego Garcia’s return. The Fourth Circuit affirmed, and in a 9-0 ruling from the Supreme Court, the government was directed to facilitate his release, but stopped short of asserting it must effectuate it. (Say what?)
That dropped the case back to the district court and in a terse two-page order, she directed the government to “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” Seems pretty clear, but the Trump administration immediately appealed to the Fourth Circuit. If they were looking for a sympathetic ear, they were badly mistaken.
In a withering rebuke of this lawless administration, Circuit Judge J. Harvie Wilkinson III, a conservative Reagan appointee, made clear his displeasure with how the government has refused to redress its own admitted wrong. The opinion is worth reading in full (link below), but some extended excerpts are worth highlighting.
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. Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
The clarity of this is refreshing, especially after the mealy mouthed opinion from the Supreme Court. (Notably not including the concurrence by Justice Sotomajor, which was clear and crisp.)
Judge Wilkinson was just warming up…
“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. “Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would “facilitate” foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood…
The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning.
Wilkinson closes by addressing the elephant in the room:
Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
While there is still time. Ouch.
Sadly, I fear that it is naïve to expect any such response from Trump or his minions.
Proof of Life
U.S. Senator Chris Van Hollen (D-MD) decided that it was time to take the bull by the horns. Frustrated with the stonewalling from the Trump administration, he decided to go to El Salvador and learn what he could about the status of Abrego Garcia. He met with the Vice President who conceded that El Salvador had no evidence that Abrego Garcia had ever committed a crime in El Salvador and that the U.S. government had not provided them any evidence of crimes committed in America. They continued to hold him, the Vice President explained, because the U.S. was paying El Salvador to do so.
Pretty sure that makes El Salvador our agent, and thus subject to the direction of the United States. If only…
After initially being turned away, Senator Van Hollen managed to get a (highly staged) meeting with Abrego Garcia, as he reported on Blue Sky:
Good on him for providing proof of life, as prior to that meeting, no one outside of the El Salvador prison had spoken to Abrego Garcia.
The White House wasted no time in proving just how naïve Judge Wilkinson is:
These are some truly twisted people hanging out at 1600 Pennsylvania.
In community, forward!
Notes:
Who Is J. Harvie Wilkinson, the Judge Behind a Scathing Rebuke of the White House?