The U.S. Court of Appeals for the Fourth Circuit has denied the Trump administration’s request that it block a federal judge’s orders, one of which required it to facilitate the return of an illegal immigrant from El Salvador whom the government said was deported to his home country due to an administrative error.
“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,” Judge Harvie Wilkinson said on April 17 in a statement joined by two other circuit judges.
An initial order from Xinis required the administration to “facilitate” and “effectuate” Abrego Garcia’s return. Still, the Supreme Court stepped in on April 10, stating that she should clarify what she meant by “effectuate.”
“The District Court should clarify its directive, with due regard for the deference owed to the executive branch in the conduct of foreign affairs,” the Supreme Court said.
On April 10, Xinis responded to the Supreme Court ruling by amending her original order to say, “Direct that defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.”
The administration’s emergency motion on April 16 argued that “under the guise of an amended order,” Xinis had “set down the same unjustifiable path, all in service of a member of a foreign terrorist organization with no valid right to be in the United States.”
The case has raised questions about the nation’s separation of powers, specifically how much judges can intervene in foreign affairs.
Wilkinson’s opinion warned of an interbranch conflict and “incipient crisis.” He said that the “branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around.”
In an April 16 opinion, Boasberg suggested that the administration could avoid contempt by asserting custody over the individuals who had been deported contrary to his order. In that case, too, the administration has accused the judge of overstepping his authority and encroaching on executive affairs.
The Department of Justice (DOJ) could appeal Xinis’s order to the Supreme Court, which could in turn help clarify its initial order from April 10. Much of the dispute between Xinis and the government focuses on the meaning of the word “facilitate” and what the Supreme Court meant when it directed Xinis to give deference to the executive branch.
He added that if Abrego Garcia presented at a port of entry, “DHS would take him into custody in the United States and either remove him to a third country or terminate his withholding of removal because of his membership in MS-13.”
In 2019, Abrego Garcia received a withholding order preventing his deportation to El Salvador. The DOJ countered that membership in a foreign terrorist organization meant he was ineligible for withholding of removal.
Abrego Garcia’s attorney has denied he is a member of MS-13, and Xinis has criticized the evidence used to support that allegation.
One was a Prince George’s County Police Department report stating that “officers contacted a past proven and reliable source of information, who advised Kilmar Armando Abrego-Garcia is an active member of MS-13 with the Westerns clique.” The 2019 report added that Abrego Garcia was seen wearing apparel associated with “Hispanic gang culture.”
“The confidential source further advised that he is the rank of ‘Chequeo’ with the moniker of ‘Chele,’” it said.
It’s unclear what exactly Xinis will ultimately require of the administration, if her order survives further appeal. Wilkinson and his colleagues seemed to agree with her that the administration had to do more than just remove domestic barriers to Abrego Garcia’s return, an interpretation it said was “not well taken.”
“The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art,” he said.
