Trump Régime Says Federal Courts Have No Power to Return Abrego Garcia
Homemade placard outside the Salvadorian embassy in Manhattan demands the return of SMART sheetmetal apprentice Kilmar Abrego Garcia. Photo/Steve Wishnia
By Steve Wishnia
Joined by El Salvador’s self-styled dictator Nayib Bukele, the Trump regime on Apr. 14 escalated its defiance of multiple court orders to “facilitate” the return of Salvadoran immigrant Kilmar Abrego Garcia. The 29-year-old Maryland construction worker has been in CECOT—El Salvador’s black-hole Terrorism Confinement Center prison for a month—along with 260 other immigrants who were seized and flown there March 15.
“Of course, I’m not going to do it,” Bukele told CNN reporter Kaitlan Collins at an Oval Office press conference after he met with Trump. “The question is preposterous. How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.”
The administration’s attitude is that no court can interfere with the President’s absolute power to direct foreign policy. “No district court has the power to compel the foreign-policy function of the United States,” White House deputy chief of staff Stephen Miller said. Miller further said the federal court in Maryland that on Apr. 4 ordered Abrego Garcia returned, “tried to tell the administration that they had to kidnap a citizen of El Salvador and fly him back here.”
The federal Fourth Circuit Court of Appeals rejected that argument in its Apr. 7 ruling. The law, it held, only limits the courts’ jurisdiction to review the Attorney General’s “exercise of lawful discretion” in removal proceedings. The decision to remove Abrego Garcia was not, it said, as it “most assuredly violated the Fifth Amendment to the Constitution.”
The appeals court also dismissed the claim that Abrego Garcia is beyond the U.S. government’s reach: He “is a detainee of the United States Government, who is being housed temporarily in El Salvador,” as part of Trump and Bukele’s deal to outsource detention there.
“The responsibility to return Mr. Abrego Garcia lies squarely with the United States government. His deportation was not just an administrative error—it was a constitutional failure,” his lawyers, Murray Osorio PLLC, said in a statement Apr. 14. “This should never happen to anyone. But it did happen—to a father, a husband, and a Maryland resident who had a right to be heard in court and who was instead sent to a foreign prison without due process.”
The ‘facilitate’ loophole
The Supreme Court’s unanimous Apr. 10 ruling ordered the Trump administration to “facilitate” Abrego Garcia’s return, but left a loophole by questioning whether ordering it to “effectuate” that interfered with foreign policy. The administration is now arguing that “facilitate” doesn’t mean very much. Attorney General Pam Bondi said in the Oval Office that it just means the U.S. government has to “provide a plane.”
In a response filed with the district court Apr. 13, Justice Department immigration attorneys claimed that it means “actions allowing an alien to enter the United States” and “to remove any domestic obstacles” that would interfere with their return. Requiring the government to bring Abrego Garcia back, they argued, would force it to “make demands of the El Salvadoran government; dispatch personnel onto the soil of an independent, sovereign nation; and send an aircraft into the airspace of a sovereign foreign nation to extract a citizen of that nation from its custody.”
In a motion filed Apr. 12, Abrego Garcia’s lawyers asked the district court to order the administration immediately to set forth what it is doing to facilitate his return, and to show cause why it should not be held in contempt for failing to comply with previous court orders.
The administration also continues to insist that Abrego Garcia is a member of the MS-13 gang. Its main basis for that, the appeals court said, was “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.”
In an Apr. 13 filing, Evan C. Katz, Immigration and Customs Enforcement’s assistant director of enforcement and removal, stated that although an immigration judge had ordered Abrego Garcia removed in 2019, “he should not have been removed to El Salvador” because the judge had ruled he could not be sent back there. But, he added, Trump’s declaration that MS-13 is a “terrorist” group nullifies that.
Miller, the architect of the first Trump administration’s practice of taking immigrant children away from their parents at the border—and deliberately not keeping track of where they were sent— fulminated that Abrego Garcia was a member of a gang of rapists and killers.
“I promise you, if he was your neighbor, you would move right away,” he told Collins.
Prayer vigil in D.C.
A prayer vigil outside the White House Apr. 14, attended by Abrego Garcia’s wife and three children, presented a very different picture of the 29-year-old sheet-metal worker, a SMART Local 100 apprentice. “His children go to our schools,” said Prince George’s County prosecutor Aisha Braveboy. “They are being raised in our communities and he should be there as their father, ensuring that they have the best of everything.”
A much smaller protest took place outside the Salvadoran consulate in Manhattan. “We don’t want anyone on our soil, whether legally or not, to be abducted to a Salvadoran prison,” Justine Harrison of RefuseFascism told Work-Bites. “It’s not just him. It’s everybody else who’s being deported without due process.”
The deportations are part of Trump’s attempt to impose a fascist regime, Rafael Kadaris, wearing a “Revolution—Nothing Less” T-shirt, told the roughly 15 protesters and reporters.
On April 14, a federal district court judge in Boston halted another administration mass-deportation measure: the Department of Homeland Security’s plan to order 530,000 Cubans, Haitians, Nicaraguans, and Venezuelans to leave by Apr. 24 or face removal. The Biden administration had deemed them refugees from war or political oppression and allowed them to stay and work legally. They include about 200 union workers at the GE Appliances-Haier plant in Louisville, Ky., Labor Notes reported.
Ten national unions and dozens of locals representing more than 3 million members have released a joint statement declaring they “will not stand by as President Donald Trump terrorizes immigrant workers with abduction, detention, and confinement without due process in unmarked facilities, far-flung detention centers, and a notorious prison in El Salvador.”
But Trump, in an aside to Bukele, suggested that he could also have U.S. citizens shipped to Salvadoran prisons. “Home-growns are next,” he said. “You gotta build about five more places. It's not big enough.”