The Trump administration took another court loss Thursday after a unanimous federal appeals panel refused to pause a Maryland judge’s order that the White House take “all available steps to facilitate” the return of an alleged MS-13 gang member to the US following his deportation to El Salvador.
In a biting seven-page ruling, the Richmond, Va.-based Fourth Circuit Court of Appeals kept US District Judge Paula Xinis’ order that the government help bring back Kilmar Abrego Garcia in place while the feds appeal Xinis’ decision, likely to the Supreme Court.
“We shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision,” wrote Chief Judge Harvie Wilkinson, an appointee of former President Ronald Reagan.
The high court had weighed in on the case April 10, ordering the feds to “facilitate” Abrego Garcia’s return after he was shipped last month to the hellish CECOT prison in his home country of El Salvador, along with 260 other alleged gang members.
Abrego Garcia filed suit against the Trump administration on March 24, nine days after he was flown out of the US.
Abrego Garcia claimed that an October 2019 immigration court ruling protected him from being sent back to his native country over concerns he could be targeted by the gang Barrio 18, a rival of MS-13.
The Trump administration argued that Abrego Garcia illegally entered the US in 2011 and should have been removed in 2019 after two immigration rulings denied him bond, with one citing a report that he was part of MS-13.
“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,” wrote Wilkinson, who was joined in his ruling by Judge Robert Bruce King, a Bill Clinton appointee, and Judge Stephanie Thacker, a Barack Obama appointee.
Even the government proves that Abrego Garcia is a “terrorist and a member of MS-13 … he is still entitled to due process,” Wilkinson wrote before citing an initial March 31 Justice Department filing that the deportation was due to an “administrative error.”
“Why then should it not make what was wrong, right?” the judge asked.
The Trump administration has insisted that no error was made and it cannot compel El Salvador to hand over one of its citizens.
During a meeting with President Trump in the Oval Office on Monday, El Salvador President Nayib Bukele told a reporter who raised Abrego Garcia’s case, “I hope you are not suggesting that I smuggle terrorists into the United States. Of course, I’m not going to do that.”
White House press secretary Karoline Leavitt Wednesday afternoon said if Abrego Garcia “ever ends up back in the United States, he would immediately be deported again … he will never live in the United States of America again.”
Wilkinson said the stance taken by the two governments will “leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.”
Justice Department lawyers have claimed that Xinis went too far when she clarified that the feds should take “all available steps to facilitate” Abrego Garcia’s return — arguing her order is a violation of the separation of powers.
But Wilkinson responded that while the judicial branch must allow the executive to fulfill its duties — including handling foreign relations — the executive must also follow court orders.
“The respect that courts must accord the executive must be reciprocated by the executive’s respect for courts,” the ruling reads.
“Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both.”
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