The Supreme Court on Thursday backed a lower-court order requiring the Trump administration to “facilitate” the release from custody of a Maryland man who was mistakenly deported to a mega-prison in El Salvador last month.
A district court judge had ordered Kilmar Abrego García to be brought back to the United States by Monday night, but Chief Justice John G. Roberts Jr. issued a brief pause hours before the deadline, allowing the justices time to weigh a government motion to block the order.
In its brief order on Thursday evening, the high court said the judge “properly requires the government to ‘facilitate’ Abrego García’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.”
The Supreme Court’s unsigned order does not mean Abrego García will be returned immediately. The justices sent the case back to the lower-court judge to clarify aspects of her initial order and said the Trump administration should be prepared to “share what it can concerning the steps it has taken and the prospect of further steps.”
There were no noted dissents.
A major flash point
The case has become a major flash point over President Donald Trump’s mass-deportation campaign. Abrego García’s attorneys have said their client is the victim of a “Kafkaesque mistake,” and critics say the government’s claim that a judge has no power to order his return raises concerns that other noncitizens could be whisked to foreign countries with little recourse.
In a separate immigration-related ruling on Monday, the Supreme Court lifted a block on the administration’s use of the Alien Enemies Act to deport alleged Venezuelan gang members but ruled the government must give potential deportees notice and a chance to challenge removal in court.
Abrego García, a Salvadoran immigrant married to a U.S. citizen, was deported on March 15 despite a court order forbidding it. His attorneys say he is at risk of harm or death in El Salvador’s Terrorism Confinement Center, which holds many gang members. He fled El Salvador as a teenager following gang threats and extortion attempts targeting his mother.
In a statement on Thursday, his attorney, Simon Sandoval-Moshenberg, said “the rule of law prevailed.
“The Supreme Court upheld the District Judge’s order that the Government has to bring Kilmar home,” he said. “Now, they need to stop wasting time and get moving.”
The court’s three liberal justices criticized the Trump administration for suggesting that it could leave Abrego García in a Salvadoran prison for “no reason recognized by the law.”
Without legal consequence
The government’s argument “implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene,” wrote Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson.
In its order, the court also directed U.S. District Judge Paula Xinis to expand on her order requiring the Trump administration to “effectuate” Abrego García’s return, noting she may have exceeded her authority by infringing on the president’s powers. Courts typically defer to the executive branch on foreign policy.
“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 order stated.
The court appeared to echo a position by Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit, who said the government could be required to work to return Abrego García but that demanding his release would “be an intrusion on core executive powers that goes too far.” Wilkinson, a Reagan appointee, was part of a three-judge panel that unanimously upheld Xinis’s ruling.
The Justice Department said in a statement that the Supreme Court “correctly recognized it is the exclusive prerogative of the President to conduct foreign affairs.
“By directly noting the deference owed to the Executive Branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy,” the statement said.
Confidential informant
Trump officials have alleged that Abrego García is a member of MS-13 based on reports from a confidential informant but have not offered any evidence. His attorneys say he is not a gang member and has no criminal record in the U.S. or El Salvador.
The government has called the deportation an “administrative error” but claims it can do little to get him back because he is now in the custody of a foreign government - under a detention agreement the Trump administration negotiated with El Salvador. Officials argue Judge Xinis does not have the authority to order them to retrieve him.
“The Constitution charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists, including by effectuating their removal,” Solicitor General D. John Sauer wrote in a filing to the court.
Deportation an oversight
Trump officials suspended a veteran Justice Department lawyer last weekend after he confirmed in court that Abrego García’s deportation was an oversight and admitted he struggled to get answers as to why the father of three was sent overseas. In an unusual filing on Monday, the government disavowed the court comments of Erez Reuveni, saying they “did not and do not reflect the position of the United States.”
Abrego García’s attorneys argued that the government was backtracking only because the statements were damaging.
The government also asserted for the first time that El Salvador may have “its own legal rationales for detaining members of … foreign terrorist groups like MS-13.” Attorneys for Abrego García called the claim implausible, noting he has not lived in El Salvador since he was 16 and has no criminal record there.
In a letter to the court on Tuesday, Abrego García’s attorney said the ruling bolsters their case, despite their client being deported under different authority.
“The Court’s unanimous insistence on due process and on the availability of judicial review to secure due process underscores that Abrego García - who was removed without reasonable notice or an opportunity to challenge his removal before it occurred, and in conceded violation of a court order - must have a remedy for this constitutional violation,” the attorneys wrote.
Judge Xinis has slammed the government’s handling of the case as “wholly lawless.” The 4th Circuit panel agreed.
“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,” the panel wrote. “The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”
Abrego García’s attorneys turned to literature to describe his plight, writing in a Supreme Court filing that their client “sits in a foreign prison solely at the behest of the United States, as the product of a Kafkaesque mistake.”
He was deported on March 15 aboard one of three flights carrying alleged Venezuelan gang members and Salvadoran deportees to El Salvador. Video posted on social media by Trump officials showed shackled men being forced off planes at night, bringing the case wide attention.
Days earlier, Abrego García had been stopped by Immigration and Customs Enforcement officers in Maryland while driving from his mother’s house to his home in the D.C. suburbs. His 5-year-old autistic son, who is nonverbal, was with him. He was detained and later sent to Texas before federal authorities deported him.
Jennifer Vasquez Sura, his wife, said in a statement that she is on an “emotional rollercoaster.
“I am anxiously waiting for Kilmar to be here in my arms, and in our home putting our children to bed, knowing this nightmare is almost at its end,” she said. “I will continue fighting until my husband is home.”