Judge Harvie Wilkinson, Abrego Garcia case April 17 2025: It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. 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. Further it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

British Cockney “Right then, sometimes it’s a real faff tryin’ to get to the bleedin’ ‘eart of things, innit? But not this time, mate. The gov’ment’s actin’ like it’s got the right to ship folks off—proper residents, mind you—to some dodgy nick overseas, no trial, no nothin’. Due process? Gawn, like yesterday’s curry. And now they’re sayin’ just ’cause they ain’t holdin’ the poor sods no more, they’re off the hook? That’s not just barmy—it’s a slap in the gob to anyone wot still believes in a bit o’ liberty, even if they’ve never set foot near a judge.”

Kindergarten Teacher “Okay, sweethearts, listen close. Sometimes it’s hard to figure out what’s really going on. But not this time—this one’s easy to understand. Some grown-ups in charge—people in the government—are saying they can take people who live here and send them far, far away to another country, and put them in a big, scary jail. And they’re not even giving those people a chance to say, ‘Hey! That’s not fair!’ Now remember how we talk about being fair in our classroom? Everyone gets a turn, everyone gets to share, and no one gets left out? Grown-ups are supposed to follow those rules too, especially when they make really big decisions. But these grown-ups are saying, ‘Well, they’re not with us anymore, so it’s not our problem.’ And that’s just not fair. Even if you don’t know all the big rules or go to court, you still know what’s right in your heart. And this? This doesn’t feel right at all.”

American Evangelical preacher“Now brothers and sisters, let me speak plain, as the prophets did of old. There are times when the truth is veiled, as Paul wrote in 1 Corinthians, ‘through a glass, darkly.’ But not today. No, today the truth stands clear as a trumpet on Zion. Our own government, yes, this very land we love, is claimin’ the right to cast aside its people—born of this soil—and toss ’em into foreign dungeons, stripped of the due process that our forefathers fought and bled for. This due process is no man-made trinket—it is the foundation, the rock, as Jesus said in Matthew 7, upon which we must build. And now, having handed these souls over, they wash their hands like Pilate and say, ‘We are no longer responsible.’ Oh Lord! This ain’t just a legal travesty—it’s a moral abomination! It ought to shake the conscience of every judge, every citizen, every God-fearing soul who holds liberty dear!”

Valley Girl “Okay, like, yeah, sometimes it’s totally hard to, like, get to the actual issue or whatever? But not this time, no way. Like, the government is literally saying it’s okay to, like, ship people off—like actual Americans—to some random foreign prison without even a hint of due process. I mean, hello? That is, like, the entire point of the Constitution. And now they’re all, ‘Oh, well we don’t have them anymore, so like, not our problem?’ Umm, excuse me? That is so not okay. Honestly, even someone who’s never set foot in a courtroom can, like, totally tell that’s a major freedom fail. I’m, like, shook.”

The Colorado Immigrant Rights Coalition’s program regarding ICE enforcement:

Witnessing ICE activity, or think you might be?

Call 1-844-864-8341 and dial 1 to speak with a dispatcher

The dispatcher will ask for more location and situation details from you, then send trained volunteers to the scene

If an ICE raid is occurring, volunteers will record the event, seek to identify the agents participating, and remind those involved of their constitutional rights. After the incident, if possible, volunteers will follow up to connect you with a local member of CIRC’s statewide DocuTeam, who will work with you to document the event and refer you to legal resources if necessary.

Documentation is used to monitor police/ICE collaboration, detect patterns that can guide our legislative efforts, and build a strong statewide network of people resisting deportations in their own communities. The testimonies of directly impacted people helped Colorado repeal our “show me your papers” law that forced local police to act as ICE agents in 2013.

CORRN Hotline and DocuTeam

The Colorado Rapid Response Network (CORRN) runs a 24/7 hotline for anyone witnessing or experiencing ICE activity.  Callers can use the 24/7 hotline either to report ongoing ICE activity or to document a past experience with ICE. If the call is for current activity, trained volunteers will respond at the scene to document the activity and ensure that all those involved know their rights. If not, the caller can leave a message and a member of the CORRN DocuTeam will follow up with them to record the details of their  story. We use documentation to monitor police/ICE collaboration, find patterns that can guide our legislative efforts, and build a strong statewide network of people resisting deportations in their own communities. The testimonies of directly impacted people helped Colorado repeal our “show me your papers” law that forced local police to act as ICE agents in 2013.

CORRN is made up of the following members: American Friends Service Committee, Colorado Immigrant Rights Coalition, Colorado People’s Alliance, Mi Familia Vota, Padres y Jóvenes Unidos, Together Colorado, and United for a New Economy. The network is also supported by SEIU Local 105, Colorado Chapter of the National Lawyers Guild, and the American Immigration Lawyers Association.

I expect that as John Roberts considers how to respond to the White House’s display of contempt for the Supreme Court’s ruling on the Abrego Garcia matter, he will take into account public opinion on the Supreme Court and Trump’s immigration policies.

When asked whether immigration helps or hurts the country, almost uniformly more people say helps rather than hurts. But this has been a long run softball question that obscures much harder feelings both right and left. At this moment, public opinion about the Supreme Court and challenges to trump is most instructive.

A Marquette Law School of March 13-27, poll released on April 3. shows strong support for the Supreme Court. Persons were asked, “If the Supreme Court rules against the president in a case, does the president have the power to ignore that ruling, or is the president required to do as the ruling says?”  Per the poll results, “A large majority of the public, 83%, say the president must obey a ruling by the U.S. Supreme Court, while 17% say the president has the power to ignore such a ruling. The percentage saying he must obey a ruling has increased slightly from 79% in December to 83% in March…. Among Republicans, 78% say the president must obey the Court, as do 82% of independents and 90% of Democrats.”

Per a March 22 -25 poll posted on YouGov on March 26 (some 11 days after the El Salvador flights, the public supported the White House in general, was quite mixed on specific issues pertaining to the Abrego Garcia case, and Republicans fiercely supported him throughout. Here are some excerpts from its report:

51% of Americans strongly or somewhat approve of how Trump is handling immigration, and 44% disapprove. That’s Trump’s highest approval out of 10 issues asked about in the poll — higher than approval for Trump’s handling of crime (47% approve / 38% disapprove), taxes and government spending (46% / 46%), or jobs and the economy (43% / 47%) Trump’s +7 net approval of his handling of immigration is also higher than at almost any time during his first term.

53% of Americans think the Trump administration is making many or some mistakes in who it is deporting, while 20% think it has made only a few mistakes and 14% think it has made no mistakes. Only 33% of Republicans think the Trump administration has made no mistakes in its deportations.

While only 41% of Americans believe that immigrants facing deportation have the right to challenge their deportation in court, 51% believe immigrants facing deportation should have this right.

64% of Americans believe the Trump administration should obey court orders when deporting immigrants, while 18% believe it should not obey them. 88% of Democrats believe the administration should obey orders and only 6% think it shouldn’t. Republicans are more divided: 40% think the Trump administration should obey immigration orders and 33% think it should not.

Kilmar Armando Abrego Garcia, who had, by immigration court order, permission to reside in the U.S., was arrested by ICE in the Baltimore area on March 12 and flown on March 15 to El Salvador’s Terrorism Confinement Center.

The government said that his deportation was an administrative error. The Supreme Court ruled 9–0 that he should be returned to the U.S. and granted court review over his arrest and deportation. It instructed a District Court to order the federal government to facilitate his return. “Facilitate” means to help get something done.

The government then made it clear to the District Court that it will not facilitate Garcia’s removal from prison. It will not ask the Salvadoran government to release Garcia, nor will it share with the court a written agreement between the U.S. and El Salvador, which almost certainly includes the conditions under which El Salvador is detaining Garcia at the request of the U.S. While fabricating an absurd interpretation of the orders, the government, clear as a bell, defies not only the District Court but also the Supreme Court.

The Garcia case contrasts with the burgeoning number of cases in which students are in the process of deportation. These student cases appear as First Amendment cases. They also involve carefully assessing the scope of federal government discretion accorded to it under immigration law. The Garcia case is far simpler: the Supreme Court says he should be returned, and the government should make an effort to return him. The government has made it clear it will not make that effort. The Garcia case also differs from all other deportation cases because Garcia appears uniquely to possess court approval of residency.

What is going on here? There is a component of recklessness and carelessness in how the federal government has addressed this case—characteristics of other aspects of this administration. I do not think that Trump cares whether there are more or fewer legal and/or unauthorized noncitizens in the U.S. I think Trump personally enjoys the idea of picking people off the street and shoving them into unmarked cars. He also likes calling people criminals. Noncitizens satisfy his appetite. Also, he probably correctly views the public as being (relative to economic issues) indifferent to immigration measures.

The next step for the District Court is to hold the government in contempt or, before that, for the Supreme Court to weigh in again and dismiss the government’s concocted defense for non-compliance.

Late April 10, the Supreme Court issued an unsigned 9- 0 decision which makes the Administration responsible for seeking the return of Abrego Garcia. The Administration must describe to the District Court the steps it has taken in will take to secure his return.

The Supreme Court wrote:

“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. The intended scope the term “effectuate” in the District Court order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard to the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

Note: instances of a court ordering the return of a deported person appears to be so rare that there is no clear guidelines based on case law about how much the court can expect the government to do, given as the conduct of foreign affairs is pertinent. There was some needless wrangling about words.  Facilitate means to help bring something about.

Very shortly after the Supreme Court issued this order, District Court Judge Xinis issued an order, including:

“The Court hereby amends the order to direct the defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible. Further, as the Supreme Court made clear, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. Accordingly, the court directs defendants to file, by no later than 9:30 AM ET on Friday April 11th a supplemental declaration from an individual with personal knowledge addressing the following: (1) the current physical location and custodial status of our Abrego Garcia; (2) what steps, if any, defendants have taken to facilitate Abrego Garcia’s immediate return to the United States; and (3) what additional steps Defendents will take, and when, to facilitate his return. To the extent defendants believe any portion of their submission must be filed under seal, they shall comply with the courts local rules for governing the ceiling of materials. The court will hold an in person status conference on Friday April the 11th at 1:00 PM.”

In a April 7 decision, none of members of the court bought into the Administration’s denial of due process when it deported several hundred persons and placed them in a prison in El Salvador. But it is not clear if at least five will vote against general use of the Alien Enemies Act for deporting persons. Very soon the court will address this issue full force.

The lead-up to April 7: The Trump administration asserted that the Alien Enemies Act (AEA) provides for stealthy deportation of 200 plus Venezuelans on March 15. DC District court Judge James Boasberg issued a temporary restraining order against using this Act and demanded that the government address the question of whether it knowingly violated the injunction. He did not question whether the Alien Enemies Act can legally be used to deport the Venezuelans. (The ACLU says no; the government says yes.) The government appealed to an appellate court to remove the temporary restraining order. The appellate court did not remove the order,

On April 7 the Supreme Court voted 5-4 (unsigned)  to remove the restraining order. The Administraion can now resume deporting persons under the Act.

It also said that those deported on the flight have a right to have their cases heard in court:  “AEA detainees must receive notice after the date of this order that they are subject to removal under the act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas corpus relief in the proper venue before such approval occurs.” All nine judges affirmed that the detainees have a right to court review. This unanimous affirmation will severely hinder the Administration’s clear intent to use the AEA to conduct swift deportations.  Persons might still be snatched off the street and put into detention but they cannot immediately deported.

It said that the venue for suits regarding the Venezuelan deportations is to be in Texas, not in the District of Columbia, and that the suits need to be based on habeas corpus. The ACLU-led, class action-type suit on March 15 to stop the deportation flight cited Administrative Procedures Act. It said that it was not asking for release from detention but rather cancellation of flights.  The APA does not involve habeas corpus, which would have asked for release from detention. Filing individual habeas petitions in Texas courts was not feasible on March 15, given the urgency and secrecy of the deportation effort.

The five-judge majority pointedly declined to address the question of appropriateness of the AEA. The dissenters were either strongly opposed to the use of AEA in this case or were at least skeptical.

The dissent written by Sotomayor directly attacked the use of the AEA. Signing Sotomayor’s dissent were Jackson, Kagan and Barrett (partial). Sotomayor wrote a detailed narrative of the affair from late March 14 on. She then severely critiqued the appropriateness of the of the AEA. Only Kagan appears to have broadly agreed with Sotomayor’s critique. But Jackson and Barrett appear to be skeptical of the use of the AEA.

El Salvadoran Kilmar Armando Abrego Garcia was legally residing in the United States. He crossed the border illegally in 2011 but received in 2019 a stay of removal due to immigration court finding over his application for asylum, stating likelihood that he would be persecuted by gangs in El Salvador.  An allegation by a police officer in 2019 that Abrego Garcia by virtue of tattoos was a member of the M-13 was not pursued.  He is married, with a child, and lived in the Baltimore area.

On March 12, 2025 he was pulled over driving his car by ICE personnel and taken into custody, being told that his legal status in the U.S. was revoked. On March 15 he was flown with many Venezuelans to El Salvador’s CECO (Terrorism Confinement Center) prison. (A dispute over the legality of this and other March 15 flights is being addressed in D.C. District Court- James Boasberg.)

On March 24 Abrego Garcia’s spouse sued the government in U.S. District Court in Maryland (Judge Paula Xinis) to return Abrego Garcia from El Salvador. (Go here for the March 24 suit and here for The Atlantic article.)

On March 31 The government told Judge Xinis in court that Abrego Garcia’s deportation resulted from an “administrative error,” knowing before his deportation that an immigration court had approved his stay pending an asylum decision.

On April 4 Judge Xinis issued an initial ruling ordering the U.S. government to facilitate Abrego Garcia’s return from El Salvador by midnight April 7. She criticized the government’s lack of evidence for its claims and described his deportation as a “grievous error” that violated federal law. “As Defendants acknowledge, they had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador – let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.” (Go here.)

The Trump administration appealed in the early hours of April 5 Judge Xinis’ order and requested an emergency stay of her decision. Among its arguments, the government said that the court has no power to force the government to retrieve a person in the custody of another country and asserted that Abrego Garcia had a “prominent role” in the M-13 gang. The government was relying solely on the assertion by a police officer in 2019. (Go here.)

Later on April 5 the government removed its attorney, Erez Reuveni, from the case and put him on administrative leave, cutting him off from email contact with the DOJ, criticizing him for displaying doubts about the case and expressing frustration with the failure of the government to respond to his requests for information. (Go here.)

On April 6, Judge Xinis reaffirmed her ruling in a scathing opinion. She rejected the administration’s argument that it lacked jurisdiction or authority to secure Abrego Garcia’s return. She emphasized that his detention in CECOT was “wholly lawless” and “shocks the conscience”. (Go here).