US supreme court tells Trump administration to facilitate return of Salvadoran man deported in error

The US supreme court directed President Donald Trump's administration on Thursday to facilitate the return of a Salvadoran man who the government has acknowledged was deported in error to El Salvador.

The court's decision came after the justice department asked the justices to throw out an April 4 order by US district judge Paula Xinis requiring the administration to “facilitate and effectuate” the return of Kilmar Abrego Garcia. The judge had issued the order in response to a lawsuit filed by Abrego Garcia, a Salvadoran migrant who was living in Maryland and has had a work permit since 2019, and his family challenging the legality of his deportation.

The court, in an unsigned decision, said  the judge's order “properly requires the government to 'facilitate' Abrego Garcia's release from custody in El Salvador and to ensure his case is handled as it would have been had he not been improperly sent to El Salvador”.

The administration “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps”, the court directed.

Xinis in an order late on Thursday after the supreme court's ruling said the US must “take all available steps to facilitate the return of Abrego Garcia to the US as soon as possible”.

She set a hearing in the Greenbelt, Maryland, federal court for 1pm on Friday. The judge said she wants to hear from the US what steps, if any, it has taken to get Abrego Garcia back to the US.

Simon Sandoval-Moshenberg, a lawyer for Abrego Garcia, hailed the court's ruling, saying “the rule of law prevailed”.

“The supreme court upheld the district judge's order that the government has to bring Kilmar home,” Sandoval-Moshenberg said.

“They need to stop wasting time and get moving.”

While siding with Abrego Garcia, the court directed Xinis to clarify the directive's requirement to “effectuate” his return “with due regard for the deference owed to the executive branch in the conduct of foreign affairs”. That requirement was unclear and may exceed the judge's authority, the court said.

A justice department spokesperson said the court's ruling recognised it is “the exclusive prerogative of the president to conduct foreign affairs”.

“By directly noting the deference owed to the executive branch, the ruling again illustrates activist judges do not have the jurisdiction to seize control of the president's authority to conduct foreign policy,” the spokesperson said.

Abrego Garcia was stopped and detained by US immigration and customs enforcement officers on March 12 and questioned about alleged gang affiliation. He was deported on March 15 on one of three high-profile deportation flights to El Salvador that included alleged Venezuelan gang members.

Justice department lawyers in a supreme court brief had argued the judge's order, by requiring the Trump administration to “effectuate” Abrego Garcia's return, had encroached on presidential authority on foreign relations in violation of the US constitution's separation of powers between its judicial and executive branches.

“The US does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge's bidding,” justice department lawyers wrote.

On March 15 the Trump administration deported more than 200 people to El Salvador, where they are being detained in the country's massive antiterrorism prison under a deal in which the US is paying President Nayib Bukele's government $6m (R116.2m).

The supreme court has a 6-3 conservative majority. Its three liberal justices on Thursday issued a statement agreeing with the court's decision, but said they would have denied the administration's request outright.

“To this day, the government has cited no basis in law for Abrego Garcia's warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. Nor could it,” liberal Justice Sonia Sotomayor wrote in the statement.

Sotomayor said the administration had requested “an order from this court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognised by the law”.

Abrego Garcia is married to an American citizen with whom he is raising a US citizen child in addition to his wife's two children from a previous relationship. He had never been charged with or convicted of a crime, according to Abrego Garcia's lawyers, who have denied the allegation that he is a member of the gang MS-13.

The justice department in a supreme court filing on April 7 said while Abrego Garcia was deported to El Salvador through “administrative error,” his  removal from the US “was not an error”. The error, department lawyers wrote, was in removing him specifically to El Salvador despite the deportation protection order.

Abrego Garcia received a 2019 judgment in the US granting him protection from removal to El Salvador after an immigration judge determined he would face persecution from gangs in his home country if returned.

Justice department lawyers said Abrego Garcia, as an alleged member of MS-13, is no longer eligible for the protection after Trump's administration designated MS-13 a foreign terrorist organisation.

Xinis, in her ruling, found the 2019 order prohibiting Abrego Garcia's removal to El Salvador was in place. She found his removal ran afoul of federal immigration law and likely violated procedural protections guaranteed by the US constitution.

The Richmond, Virginia-based 4th US circuit court of appeals on April 7 rejected the administration's request to freeze the judge's order.

The supreme court on Tuesday blocked a judge's order for Trump's administration to rehire thousands of fired employees. On Monday, it let Trump pursue deportations of alleged Venezuelan gang members using a 1798 law that historically has been employed only in wartime, but with some limits. The court on April 4 let Trump's administration proceed with millions of cuts to teacher training grants, part of his crackdown on diversity, equity and inclusion initiatives.

Reuters