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The Trump administration asked the Supreme Court to lift a judge’s ruling ordering the government to return a man mistakenly deported to El Salvador by the end of Monday.
Kilmar Abrego Garcia, a Salvadoran national who resides in Maryland, was removed despite an immigration judge’s 2019 ruling protecting him from being deported to the country. The administration has blamed it on an “administrative error.”
Calling U.S. District Court Judge Paula Xinis’s Friday order to return Abrego Garcia “unprecedented relief,” the Justice Department said it can’t comply with the ruling and called for the high court’s emergency intervention.
“And this order sets the United States up for failure,” wrote Solicitor General D. John Sauer.
“The United States cannot guarantee success in sensitive international negotiations in advance, least of all when a court imposes an absurdly compressed, mandatory deadline that vastly complicates the give-and-take of foreign-relations negotiations. The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge’s bidding,” Sauer continued.
By default, the administration’s request will go to Chief Justice John Roberts, who handles emergency appeals arising from the 4th Circuit. He could act on the application alone or refer it to the full court for a vote.
The request came minutes before a 4th U.S. Circuit Court of Appeals three-judge panel unanimously denied the administration’s bid to lift the judge’s order.
“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,” U.S. Circuit Judge Stephanie Thacker, joined by U.S. Circuit Judge Robert King, wrote in a concurring opinion.
“The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable,” wrote the judges, who were both appointed by Democratic presidents.
The Supreme Court filing did not backtrack on the admission that Abrego Garcia was removed in error, but it maintained its assertion that he is a member of the MS-13 gang, something the man’s relatives deny.
“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,” the Justice Department wrote.
Abrego Garcia’s lawyers have pointed to earlier immigration court proceedings showing he fled El Salvador due to gang violence. The allegation he is a member of the gang is based on a confidential informant’s claim in 2019 that Abrego Garcia was a member of a chapter in New York, where he has never lived.
The Justice Department over the weekend suspended one of the attorneys working on Abrego Garcia’s case, complaining he did not sufficiently advocate on behalf of the Justice Department.
In its own ruling, the 4th U.S. Circuit Court of Appeals determined that it was Attorney General Pam Bondi who lacked the authority to send Abrego Garcia to El Salvador in the first place, something the court said does not block their jurisdiction over the matter.
“The Attorney General’s decision to remove Abrego Garcia to El Salvador was not one that was within her lawful discretion. The removal was not the enforcement of a valid order of removal. Instead, it was plainly in violation,” of immigration laws,” the court wrote.
“Because removing Abrego Garcia to El Salvador was not an action undertaken within the Attorney General’s discretion, [the statute] does not strip us of jurisdiction here.”
Rebecca Beitsch contributed to this report.
