The story of a deported Salvadoran man has made headlines, and for good reason. It features extremely unusual elements: The deportee had a court order suspending his deportation and government officials expressly admitted that there was an "administrative error" and that he was "inadvertently" deported. Nevertheless, they argue that he cannot return to the U.S.
The Case in Brief
Abrego Garcia is a Salvadoran citizen whose deportation had been suspended in 2019. He was living in Maryland with his wife, a U.S. citizen, their son, and her two children, and working legally as a metalworking apprentice. Up until last month, anyway, when ICE officers detained Abrego García. He was subsequently deported to El Salvador, and his wife learned of this after identifying him in photos of detainees entering the notorious Salvadoran prison "CECOT."
Garcia's attorneys filed a complaint in the District Court of Maryland against a host of administration officials, including Kristi Noem, Secretary of the Department of Homeland Security (DHS), Todd Lyons, Director of ICE, Kenneth Genalo, Executive Associate Director of ICE, Nikita Baker, Director of the Baltimore ICE office that arrested the plaintiff, Pamela Bondi, Attorney General of the United States, and Marco Rubio, Secretary of State.
In the petition, they requested:
- A declaration that the defendants violated United States law and the Fifth Amendment to the Constitution
- An order that compensation to the government of El Salvador for detaining Abrego García be suspended
- That the defendants order the government of El Salvador to release Abrego García from CECOT and deliver him to the U.S. Embassy in El Salvador
- That if the government of El Salvador refuses to do so, they take all available measures to return him to the country
- That the plaintiffs be awarded costs and attorneys' fees under the Equal Access to Justice Act
District Judge Paula Xinis agreed with Garcia's attorneys and ordered his return to Maryland, citing his case as "categorically different; there was no legal basis for his arrest, nor any evidence to suggest he is being held at CECOT … to answer for crimes in that country. Rather, his detention appears entirely unlawful." The judge gave the government until midnight Tuesday to return Abrego Garcia to the country.
The Fourth Circuit Court of Appeals upheld the order, and the government appealed to the U.S. Supreme Court.
The U.S. Claims It Will Not Get Garcia Back
The U.S. federal government argued that it cannot and will not obey the court order. Robert Cerna, director of ICE's Office of Removal Operations, issued a statement that ICE was aware of the suspension of the removal order and that Abrego-Garcia was not on the initial list of people to be deported, but that he "moved up the list" as other people were removed from the flight for other reasons.
"Due to administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an inadvertent act, and the deportation was carried out in good faith based on the existence of a final removal order and Abrego-Garcia's alleged membership in MS-13" the statement noted. MS-13 is the common name for Mara Salvatrucha, an international gang designated as a terrorist organization by the U.S. government.
State Attorney General Dean John Sauer stated in his petition to the Supreme Court to block Abrego García's return order that "even if the United States admits that the deportation to El Salvador was an administrative error, that does not give other district courts license to seize control of international relations, treat the executive branch as a subordinate diplomat, and demand that the United States allow a member of a foreign terrorist organization to enter the United States tonight."
Simply put, the government defended itself by saying that the judge lacked the authority to order his return to El Salvador, that he belonged to the MS-13 gang, and that the error was not the deportation itself but the deportation to El Salvador.
Interestingly, last Friday, Justice Department attorney Erez Reuveni admitted to Judge Xinis that he was also “frustrated that I don’t have answers for you to many of these questions.” The next day, Reuveni was placed on leave. Attorney General Pam Bondi stated that, under her direction, attorneys who did not fervently advocate for the United States would face consequences.
Withholding of Removal Status vs. Asylum
It's worth noting that some sources are confusing asylum with a stay of removal status. A stay of removal is a much more unstable status than for those seeking asylum. Both allow a person to remain in the United States and grant permission to work (if approved). However, withholding of removal does not provide a path to permanent residency or citizenship. The government can revoke the withholding if conditions in the person's country of origin improve. For a judge to grant a stay of removal, it must be proven that there is a high likelihood that, if deported, the immigrant would suffer persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Other restrictions include a ban on leaving the country (traveling outside the country will be considered “self-deported”) or sponsoring relatives to come to the United States.
Will Deportations Without Due Process Continue?
The Abrego García case isn't the only controversial one. There have also been other cases of people who were legally in the country and were deported without hearings, ranging from students with visas to legal permanent residents with green cards like Mahmoud Khalil. Asked about this issue on National Public Radio, Tricia McLaughlin, Assistant Secretary for Public Affairs at the Department of Homeland Security, responded that "due process" does exist, but that there are different processes for people considered members of terrorist groups. Furthermore, people with visas have a privilege, not a right, and the government can revoke them when it deems appropriate. Interviewed about how the public disagrees with whether there is truly due process when people are denied a hearing and deported abroad, McLaughlin insisted that intelligence information is sensitive and that they cannot disclose intelligence reports for every individual they arrest.
McLaughlin also argued that several immigration judges have determined Garcia was a member of MS-13. According to U.S. News & World Report, Garcia was denied asylum in 2019 due to concerns of gang involvement but was granted withholding of removal status due to a well-founded fear of persecution if he returned home. Police designated him as a gang member based on a confidential informant. He has never been charged with a crime.
Order Temporarily on Hold
On Monday, Supreme Court Justice John Roberts put a hold on the court order for Abrego García's return. However, this is an administrative measure that does not involve the merits of the case. A more definitive ruling is expected by Thursday. Meanwhile, deliberations continue, the return order remains on hold, and Abrego García remains in El Salvador, in a prison filled with members of the gangs he claimed to have fled and under which he was granted a stay of removal years ago.
Related Resources
- The Removal Process (FindLaw's Immigration Laws)
- Trump Invokes Alien Enemies Act to Deport Venezuelan Nationals (FindLaw's Law and Daily Life)
- Legal Issues That Will Affect Your Visa Status (FindLaw's Immigration Laws)
