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On March 15, the U.S. removed Kilmar Armando Abrego Garcia from the country to El Salvador, where he is currently detained in the Center for Terrorism Confinement. The U.S. acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal. The U.S. represents that the removal to El Salvador was the result of an “administrative error.”
The U.S. alleges, however, that Abrego Garcia has been found to be a member of the gang MS-13, a designated foreign terrorist organization, and that his return to the country would pose a threat to the public. Abrego Garcia responds that he is not a member of MS-13, and that he has lived safely in the U.S. with his family for a decade and has never been charged with a crime.
On April 4, the U.S. District Court for the District of Maryland entered an order directing the government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” On the morning of April 7, the U.S. filed an application to vacate the district court’s order. Chief Justice John Roberts Jr. entered an administrative stay and referred the application to the U.S. Supreme Court.
The application was granted in part and denied in part.
Due to the administrative stay issued by Roberts, the deadline imposed by the district court has passed. To that extent, the court noted that the government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the district court’s order remains in effect but the U.S. Supreme Court found the order requires clarification on remand.
Specifically, the high court found that the order properly 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.But it found the intended scope of the term “effectuate” in the district court’s order is unclear and may exceed the district court’s authority.
The Supreme Court noted that the district court should clarify its directive, with due regard for the deference owed to the executive branch in the conduct of foreign affairs. For its part, the high court said the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.
The order entered by Roberts was vacated.
Justice Sonia Sotomayor, with whom Justices Elena Kagan and Ketanji Brown Jackson joined, wrote a statement respecting the court’s disposition of the application.
“Because every factor governing requests for equitable relief manifestly weighs against the [government], I would have declined to intervene in this litigation and denied the application in full,” Sotomayor wrote. “ Nevertheless, I agree with the [court’s] order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador.”