“My Bad,” but “Too Bad”?

I began writing this post Friday evening intending to discuss obligations of an attorney as an officer of the court and its intersection with the presidential attack on law firms. I toyed as well with explaining why an executive order is not law but seeks to implement existing law through obligations imposed on the Executive Branch, in spite of the considerably larger authority that recent executive orders suggest exist as a primer for appellate lawyers asked about them.

However, as I was writing, breaking news interrupted these thoughts. Earlier in the day, U.S. District Court Judge Paula Xinis issued an order that the defendants, who include the Secretary of Homeland Security, the Attorney General, and the Secretary of State, must return Kilmar Armando Abrego Garcia to the United States by Monday at midnight. I chose to write about this case for this blog because, as it plays out, it will say much about the truth-seeking function of our justice system, the efficacy of appeals, and the authority of courts to develop a remedy.

Abrego Garcia, a native of El Salvador, entered the U.S. illegally in 2011 at age 16, fleeing gang violence at home and joining his American-citizen brother in Maryland. Over the years in the U.S., he married an American citizen with two children and had another child with his wife. In 2019, he was targeted for deportation because of alleged MS-13 gang ties in New York, where he had never lived, and because he had tattoos and wore a Chicago Bulls hat, as well as a hoodie, which was deemed evidence of gang membership. He prevailed before the immigration judge and received an order giving him “withholding of removal” status in light of the threat of gang violence to him if he returned to El Salvador. The court order meant he could never be deported to the place of his birth.

When he was stopped by immigration authorities again last month, Abrego Garcia was returning home from work after retrieving his five-year-old autistic son from day care. Although he was not Venezuelan, he was shuttled off without a hearing to the mega-prison in El Salvador known as the Terrorism Confinement Center as part of the roundup of alleged Tren de Aragua gang members that is the subject of a different lawsuit pending in federal court in Washington, DC.

There are many concerning aspects to the legal case, including a substantial disconnect between what the Justice Department lawyer told the court and what the White House is saying. The court received a sworn statement from an acting director of the Enforcement Removal Operations that called Abrego Garcia’s deportation an “administrative error” and “oversight,” because they did not connect the “do not remove” order to him. The Justice Department lawyer conceded that Abrego Garcia should not have been deported but asked Judge Xinis for 24 hours to convince his client, the United States, to seek the prisoner’s return from El Salvador. She denied the request for a delay. Yet, in a filing earlier in the week, the U.S. sought to justify the deportation by claiming Abrego Garcia was a member of the El Salvadoran gang, MS-13. Without an offer of proof, the judge characterized the charge as “just chatter.” (On Saturday, ABC News reported that the Justice Department put the attorney on leave for a “failure to zealously advocate” for the government’s position; His supervisor was also put on leave for “failure to supervise a subordinate.)  

After Friday’s order to return Abrego Garcia to the U.S., White House deputy chief of staff Stephen Miller called Judge Xinis a “Marxist,” who “now thinks she’s the president of El Salvador.” White House press secretary Karoline Leavitt doubled down on the gang-membership claim by saying Abrego Garcia was convicted of being an MS-13 member and that she had seen the record of that, which was in ICE’s control. Vice President JD Vance echoed that stance. The assertion is particularly odd because a conviction would be a public record, and the only public record apparently shows the opposite result.

“We suggest the Judge contact President Bukele [of El Salvador],” Leavitt added, “because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” The latter comment is in line with the Justice Department’s earlier position that it has no control over El Salvador and what it does with the prisoners. It is a position that seems difficult to credit and at odds with the administration’s claim that El Salvador was holding these prisoners pursuant to a contract with the United States. Certainly, the U.S. had no difficulty obtaining El Salvador’s cooperation to stage a photo op at the prison for Homeland Security Secretary Kristi Noem earlier in the week.

As Abrego Garcia’s attorney, put it to Judge Xinis, the government’s position is “We’ve tried nothing and we’re out of options.” If accurate, that is not a position any judge is likely to tolerate.

Although the political actors in the White House are sounding defiant and have replaced their counsel in the courts, the Justice Department has appealed the order to the Fourth Circuit. The case seems unlikely to end there. How it proceeds from here will teach the appellate bar a great deal about the process we are part of, what is possible, and how the justice system works or doesn’t work more generally.