Supreme Court pauses midnight deadline to return man mistakenly deported to El Salvador

Hind Al Soulia - Riyadh - WASHINGTON — The Supreme Court on Monday temporarily paused a court-imposed midnight deadline to return to the US a Maryland man who was mistakenly deported to El Salvador, agreeing to a request from President Donald Trump that will give the justices more time to consider the case.

Chief Justice John Roberts granted the “administrative stay,” a move that will extend the deadline until the court hands down a more fulsome decision in the case of Kilmar Armando Abrego Garcia, who was deported on March 15.

The decision to temporarily pause the case, which is relatively common when the court is facing a quick deadline, means that Abrego Garcia, a Salvadoran national, will remain at a notorious prison in El Salvador for now. A lower court judge had given the administration until midnight to return him to the US.

Roberts did not set a new deadline, though the court is likely to move relatively quickly. The chief justice ordered Abrego Garcia’s attorneys to respond by Tuesday, though they had already done so minutes before Roberts’ order was made public.

“This is just a temporary administrative stay. We have every confidence that the Supreme Court will resolve this matter as quickly as possible,” Simon Sandoval-Moshenberg, Abrego Garcia’s attorney, said after the Supreme Court’s decision.

Trump attorneys have conceded in court filings that the administration mistakenly deported the father of three “because of an administrative error,” but said it could not bring him back because he is in Salvadoran custody. Abrego Garcia’s case has added to the already considerable legal scrutiny over White House efforts to deport immigrants without a hearing or review.

The Justice Department told the Supreme Court that ordering officials to return the man is “unprecedented” as it sounded now-familiar themes arguing federal courts are overstepping their power.

“Even amidst a deluge of unlawful injunctions, this order is remarkable,” recently confirmed Solicitor General D. John Sauer told the Supreme Court in the filing Monday. “The Constitution charges the president, not federal district courts, with the conduct of foreign diplomacy and protecting the nation against foreign terrorists, including by effectuating their removal.”

“While the United States concedes that removal to El Salvador was an administrative error ... that does not license district courts to seize control over foreign relations, treat the executive branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight,” Sauer added.

Abrego Garcia rejected that position in his own written arguments Monday.

“There is no dispute that Abrego Garcia is only in El Salvador because the United States sent him there,” his attorneys told the Supreme Court. “There is likewise no dispute that he is being held only because the United States has requested that he be held. And there is no evidence in the record of this case supporting the government’s contention that it cannot bring him back.”

The Trump administration’s “contention that he has suddenly morphed into a dangerous threat to the republic is not credible,” Abrego Garcia’s attorneys wrote. “The executive branch may not seize individuals from the streets, deposit them in foreign prisons in violation of court orders, and then invoke the separation of powers to insulate its unlawful actions from judicial scrutiny.”

Abrego Garcia was in the country illegally, but an immigration judge in 2019 — after reviewing evidence — withheld his removal. That meant that Abrego Garcia could not be deported to El Salvador. A gang in his native country, the immigration judge found, had been “targeting him and threatening him with death because of his family’s pupusa business.”

The Trump administration has claimed that Abrego Garcia is a “ranking member” of the MS-13 gang. Because the Trump administration designated MS-13 as a foreign terrorist organization, Sauer wrote, the withholding from the immigration court was no longer enforceable.

The administration alleges that Abrego Garcia was arrested “in the company of other ranking gang members” and that he was confirmed to be a member of the gang by a “reliable source.”

But in the six years between his immigration hearing and his deportation, Abrego Garcia checked in with immigration officials annually and was never charged with a crime, court records show.

Yet Abrego Garcia was placed on one of three planes bound for a notorious prison in El Salvador last month. Several of the people loaded onto those planes were deported under Trump’s invocation of the 1798 Alien Enemies Act — an invocation that has drawn its own legal challenge now pending at the Supreme Court. But Abrego Garcia, the administration has said, was deported under different authorities.

This handout image obtained March 16 from El Salvador’s Presidency Press Office shows Salvadoran police officers escorting alleged members of the Venezuelan gang Tren de Aragua recently deported by the US government to be imprisoned in the Terrorism Confinement Center (CECOT) prison.

On Friday, US District Judge Paula Xinis explained in an opinion why she had ordered the government to return Abrego Garcia by 11:59 p.m. ET on Monday.

White House officials have publicly mocked the judge’s order and assert they have no ability to return Abrego Garcia to the United States.

“Marxist judge now thinks she’s president of El Salvador,” Trump adviser Stephen Miller posted to social media Friday.

But under oath, the Justice Department has been far less clear about the removal. Pressed by Xinis last week about why the US couldn’t return Abrego Garcia, DOJ lawyer Erez Reuveni said he didn’t have an answer.

“The first thing I did when I got this case on my desk is ask my clients the same question,” Reuveni responded.

The Department of Justice has since placed Reuveni and his supervisor on leave.

The request to the Supreme Court came minutes before a ruling from the 4th US Circuit Court of Appeals denying the Justice Department’s request to lift the lower-court order.

The panel rejecting the appeal was: Judge Stephanie Thacker, an appointee of former President Barack Obama; Judge Harvie Wilkinson III, an appointee of former President Ronald Reagan; and Judge Robert King, an appointee of former President Bill Clinton.

Abrego Garcia’s wife, Jennifer Stefania Vasquez Sura, said before the high court’s decision that the appeals ruling gave her “hope” and “encouragement.”

“This decision gives me hope, and even more encouragement to keep fighting. My children, family, and I will continue praying and seeking justice. Now that the court has spoken, I ask again that both President Trump and President Bukele stop attempting any further delays,” she said, referring to Nayib Bukele, the president of El Salvador. “They need to follow the court’s order NOW. My children are waiting to be reunited with their father tonight.”

Thacker wrote in a scathing concurrence explaining her reasoning that the “United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process.”

“The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable,” she wrote, adding later that the “irreparable harm in this case is the harm being done to Abrego Garcia every minute he is in El Salvador.”

“And the public interest undoubtedly favors requiring the Government to facilitate and effectuate his return to the United States,” she added.

In a solo concurrence explaining his reasoning, Wilkinson said he thinks it is “legitimate for the district court to require that the government ‘facilitate’ the plaintiff’s return to the United States so that he may assert the rights that all apparently agree are due him under law.”

“There is no question that the government screwed up here,” he continued. “Thus the government here took the only action which was expressly prohibited.”

But Wilkinson said he read Xinis’ order “as one requiring that the government facilitate Abrego Garcia’s release, rather than demand it.” He said that reading it as a requirement for the administration “would be an intrusion on core executive powers that goes too far.” — CNN