The Justice Department filed an application for an emergency
stay of an order requiring an adjudicated MS-13 member be brought back
the United States that stopped within inches of calling the district
court judge who issued the order a moron. In a tersely worded brief that
demolished the entire proceeding, the Justice Department's brief
ridiculed the order by Obama-appointed Judge Paula Xinis
to “facilitate and effectuate” Kilmar Abrego Garcia’s return to the US
by Monday night, saying: "Because the United States has no control over
Abrego Garcia, however, Defendants have no independent authority to
“effectuate” his return to the United States—any more than they would
have the power to follow a court order commanding them to “effectuate”
the end of the war in Ukraine, or a return of the hostages from Gaza;"
see Judge Orders Trump to Return Deported Man Sent to El Salvadoran Prison, Sets Up a Massive Showdown – RedState.
Garcia, a citizen of El Salvador, who is portrayed as a "Maryland
father" in most news reports, entered the US illegally in 2011. In 2019,
he was arrested on allegations of membership in the violent Salvadoran
gang called Mara Salvatrucha, or MS-13. At that time, he
applied for political asylum, which was denied. He was given an order of
removal, but a judge put his deportation on hold on the grounds that he
might be in danger if he returned to El Salvador. In early March,
Garcia was arrested and put on a plane to El Salvador and the Terrorist Confinement Facility, CECOT.
His attorneys sued, and a judge ordered the Trump administration to return Garcia to Maryland. In her order, the judge called the deportation “an illegal act.”
When White House spokeswoman Karoline Leavitt reacted by saying,
“We suggest the Judge contact [El Salvador’s] President [Nayib] Bukele
because we are unaware of the judge having jurisdiction or authority
over the country of El Salvador,” it struck me, and many others, as the
kind of remark you can make if you are in no danger of facing the judge
in a courtroom. As it turned out, she perfectly captured the tone of the
administration's request for a stay of her order.
High Points
The first response was that the judge's order is impossible to comply with.
The
district court’s order—a command to “facilitate and effectuate” Abrego
Garcia’s return from a foreign country by midnight on Monday—is
unlawful. There is no likelihood that it would survive review on
appeal.
...
The order below is neither possible nor proper.
As noted, Abrego Garcia is an El Salvadoran national, being held in El
Salvador, at the hands of the El Salvadoran government.
The conclusion is my favorite.
Because
the United States has no control over Abrego Garcia, however,
Defendants have no independent authority to “effectuate” his return to
the United States—any more than they would have the power to follow a
court order commanding them to “effectuate” the end of the war in
Ukraine, or a return of the hostages from Gaza.
The
government's argument is that Garcia had a final deportation order, so
the district court judge erred in hearing the case because it was
outside her jurisdiction.
Even putting aside these
fundamental defects, the order below also runs into a statutory bar.
Section 1252(g) strips district courts of jurisdiction to review “any
cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to … execute removal orders 11 against
any alien” under the INA, except as otherwise provided in § 1252. 8
U.S.C. § 1252(g) (emphasis added). This is such a suit. The district
court thus lacked jurisdiction over this case, and lacked authority to
issue its order.
No one cares if Garcia had a previous order suspending his deportation, and his lawyers realize that even if the judge doesn't.
But
as the Supreme Court has made clear, removal orders and withholding
orders are “distinct.” Johnson v. Guzman Chavez, 594 U.S. 523, 539
(2021). And just as important, a withholding order does not “affect the
validity of the underlying removal order.” Id. at 540. Accordingly,
even if a removal runs afoul of some other legal bar (such as
withholding relief), it is still the “execution” of a “removal order”
under the very terms of § 1252(g). The federal courts thus cannot act
upon any “claim” challenging such an execution, “[e]xcept as provided”
elsewhere § 1252—an exception not even Plaintiffs have argued applies
here.
Garcia didn't ask to be returned to the United States; the order demanding such is illegal.
He
did not claim an entitlement to be in the United States; nor did he
raise any concerns with being sent to some third country. In that
light, ordering Abrego Garcia returned to the United States—and only the
United States—was an invalid and untailored request. And it further
compounded the district court’s overreach. As a matter of both sound
immigration policy and responsible foreign policy, the United States
regularly relies on being able to remove aliens to third countries, when
there are issues with returning them to their place of origin. The
district court erred in interfering with that.
In theory, the government could honor Garcia's demand by sending him
to Afghanistan, as he only objects to being held in El Salvador.
Already we can see that Judge Xinis was much more interested in burnishing her Resistance cred than dealing with a legal case.
There is no public interest served by bringing a member of a transnational terrorist group back to the United States.
Accordingly,
while there is no doubt a “public interest in preventing aliens from
being wrongfully removed,” Nken, 556 U.S. at 435, there is an
overwhelming public interest in not importing members of violent
transnational gangs into this country, see id. at 436 (noting a
heightened “interest in prompt removal” if an “alien is particularly
dangerous”).
...
It is true that an immigration judge
concluded six years ago that Abrego Garcia should not be returned to El
Salvador, given his claims about threats from a different gang. Final
Removal Order 7–10. That conclusion was dubious then (and increasingly
so now). But it has become totally untenable, given the Secretary of
State’s designation of MS-13 as a Foreign Terrorist Organization in
February. 90 Fed. Reg. at 10030–31.
And finally, the Justice Department demolishes Garcia's claim that he will be subject to torture in El Salvador.
As
for the latter, Plaintiffs have not come close to showing that Abrego
Garcia will likely be tortured or killed in CECOT. For starters, the
Executive Branch has asserted that no such danger exists. See generally
90 Fed. Reg. 14514 (Apr. 2 2025). That is virtually dispositive. See
Kiyemba v. Obama, 561 F.3d 509, 515 (D.C. Cir. 2009) (“[S]eparation of
powers principles . . . preclude the courts from second-guessing the
Executive’s assessment of the likelihood a detainee will be tortured by a
foreign sovereign.”).
Indeed, the United States, as a party to
the Convention Against Torture, is committed not to return a person to a
country where that person is likely to be tortured. See 8 C.F.R. §
1208.18. And, as one of Plaintiffs’ declarants concedes: “El Salvador is
a signatory to both the Convention Against Torture and the
International Covenant on Civil and Political Rights.” Bishop Decl., ECF
No. 10-3, ¶ 32. The United States has ensured that removed aliens will
not be tortured, and Defendants would not have removed any alien to El
Salvador for detention in CECOT if it believed that doing so would
violate the United States’ obligations under the Convention. And they
did not do so here.
Final Word
The government's brief conclusively
takes apart every aspect of Garcia's case. He had a deportation order;
he had MS-13 connections that make him ineligible to enter the US; and
the judge not only doesn't have the clout to make El Salvador send him
back to the US, she isn't legally allowed to hear the case.
This
case is headed to the Fourth Circuit, where we can hope they will give
Judge Xinis's desire to possess magical powers short shrift.
READ THE STAY APPLICATION
Abrego Garcia vs. Noem by streiff on Scribd
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