Wilkinson wrote Thursday that "the relief the government is requesting is both extraordinary and premature. While we fully respect the executive's robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court's recent decision."
Abrego Garcia was supposed to be protected from deportation to his native El Salvador by an immigration judge's 2019 decision. Xinis' order for the Trump administration to facilitate his return to the United States as soon as possible has already gone through the 4th Circuit and the U.S. Supreme Court, whose majority
affirmed her directive last week.
Despite the Trump administration's admission in court that Abrego Garcia's deportation was an "error," he remains in El Salvador's Terrorism Confinement Center (CECOT). Meanwhile, U.S. President Donald Trump on Monday welcomed Salvadoran President Nayib Bukele to the White House, and both have suggested they lack the ability to return the 29-year-old to the United States.
The Trump administration has also continued to claim—including in its Wednesday filing to the 4th Circuit—that "Abrego Garcia is a member of the designated foreign terrorist organization MS-13," which he and his family have
denied. His wife and 5-year-old son are U.S. citizens.
"It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order," Wilkinson wrote. "Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear."
"The Supreme Court's decision remains, as always, our guidepost," he stressed. Wilkinson—joined by U.S. Circuit Judges Robert King and Stephanie Thacker, who were respectively appointed by former Presidents Bill Clinton and Barack Obama—continued:
The Supreme Court's decision does not... allow the government to do essentially nothing. It requires the government "to 'facilitate' Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador."
[...]
"Facilitation" does not permit the admittedly erroneous deportation of an individual to the one country's prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. "Facilitation" does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would "facilitate" foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.
The judge recognized a broader concern raised across the country as this case has garnered widespread attention: "If today the executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies?"
Already, at least one U.S. citizen already has been detained at the request of Immigration and Customs Enforcement. The
Florida Phoenix on Thursday reported the story of Juan Carlos Lopez-Gomez, a 20-year-old held in the Leon County Jail.
In the appellate panel's order, the Reagan appointee also called out the Trump adminstration's recent
attacks on the federal judiciary, writing: "The respect that courts must accord the executive must be reciprocated by the executive's respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the executive disfavors and exhortations to disregard court orders sadly illustrate."
"It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well," he concluded. "We yet cling to the hope that it is not naïve to believe our good brethren in the executive branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time."
Xinis has asked the administration for regular updates on Abrego Garcia. Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, on Thursday
noted a brief new submission from the U.S. Department of Homeland Security's acting general counsel.
"Meanwhile, in the district court, the Trump administration continues to refuse to provide any information to Judge Xinis," Reichlin-Melnick said. "For the last two days, they've even refused to provide the required daily updates confirming Mr. Abrego is in El Salvador."
Others—including Maryland attorney Joe Dudek, who has
filed a friend-of-the-court brief—also flagged the filing on social media:
The appellate panel's decision, which can now be appealed to the Supreme Court, came as U.S. Sen. Chris Van Hollen (D-Md.) was in El Salvador attempting to meet with Abrego Garcia to check on his health condition. In a video
posted on social media Thursday afternoon, the senator said that he and an attorney were denied entry into CECOT.
The Associated Pressreported that "while Van Hollen was denied entry, several House Republicans have visited the notorious gang prison in support of the Trump administration's efforts. Rep. Riley Moore, a West Virginia Republican, posted Tuesday evening that he'd visited the prison where Abrego Garcia is being held. He did not mention Abrego Garcia but said the facility 'houses the country's most brutal criminals.'"
