Working Immigrants

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).

The Trump Administration may be aligned with what in effect is a civilian militia-type group, Betar, to identify international students to deport. Timothy Snyder writes how autocratic aspirants use private armies in extra-legal ways to further their cause. Betar might be likened to Proud Boys, an organization it has reportedly praised.

Secretary of State Rubio said that some 300 student visas have or are being cancelled: ““We do it every day. Every time I find one of these lunatics, I take away their visa,” Rubio said, referring to student protesters. “I hope at some point we run out because we have gotten rid of all of them, but we’re looking every day for these lunatics that are tearing things up.”

Cancellations of visas are apace with no visibility except mostly through campus – related media. Stanford, University of Massachusetts / Amherst. Arizona State University and Colorado University have reported revocations, without any notice or explanation to university officials or any other public announcement.

Reports of a pro-Isreal group Betar providing names of persons they wish deported to ICE – here and here are articles published about Betar.

@Clashreport: Zionist organization Betar is compiling lists of foreign students in the U.S. who have supported Hamas or joined anti-Israel protests, aiming for their deportation under Trump’s proposed policies. Betar uses facial recognition and database technology to identify individuals involved in what it calls “antisemitic protests.” The list includes about 30 students from countries like Jordan, Syria, and the UK, attending universities such as Columbia, UCLA, and Carnegie Mellon. Here is an article about how Betar is working to deport students.

Betar itself says it is working towards deporting persons. Here are tweets from @Betar_USA: We told you we have been working on deportations and will continue to do so. Expect naturalized citizens to start being picked up within the month. You heard it here first. Those who support jihad and intifada and originate in terrorist states will be sent back to those lands.

The Anti-Defamation League in February labeled Betar as an extremist group. In its profile of the group it says it “openly embraces Islamophobia and harasses Muslims online and in person. The group has indicated that they would like to work with the Proud Boys, a far-right extremist group with a history of antisemitism and Islamophobia, to “counter Islamic jihadis.”

On April 3, the League, noting a “disturbing pattern,” called for the Administration to show more respect for law in its deportation of students.  In a press release, “[Anti-Defamation League CEO] Jonathan Greenblatt is asking the Trump administration for greater transparency as it pursues further deportations, arguing that standing up for Jewish students does not require trampling on the rights of others.”

Canary Mission is another group which labels people they don’t like as anti-semitic.

Here is a summary of the TPS program’s risks of termination and how Florida has responded.

When the first Trump administration took office, there were over a dozen Temporary Protected Status programs in place. (Go here for a decription of TPS.) The administration almost immediately began to terminate some. These terminations were blocked by courts. However, in 2020 a Circuit Court of Appeals upheld the administration’s decision to terminate for about 300,000 individuals (Ramos v. Nielsen).

The Biden administration canceled the termination and expanded TPS. Towards the end of the Biden administration, there were 864,000 TPS beneficiaries in the United States, from 16 countries. Some 344,000 of them were Venezuelans.  However, another 100,000 Venezuelans were in application for TPS status. (These figures leave out humanitarian parole numbers, which are about 117,000 for Venezuelans. These protections were terminated on Marfh 25.)

On January 28, DHS Secretary Kristi Noem terminated Venezuelan TPS status. Protections were set to end on April 7.  (Here is DHS’s entry in the Federal Register.) This termination and that for Haitians was appealed.

Termination’s impact would be most intensely felt in Florida, which hosts a relative high share of TPS persons, especially Venezuelans.  Immediately after Noem’s public announcement, on January 29,  three Florida representatives  (Diaz-Balart, Giménez and Salazar) released a joint statement in solidarity with the Venezuelan community, emphasizing the need for humane treatment and legal protections for those fleeing the Maduro regime.

On March 31, in National TPS Alliance v. Noem, et al., U.S. District Judge Edward Chen issued a nationwide injunction blocking the termination of Venezuela’s TPS designation. (Go here and here.) The ruling stated that DHS’s actions were arbitrary, capricious, and likely motivated by unconstitutional bias. Protections were extended while litigation continued. Chen ordered the continuation of TPS protections until April 2, 2026.  The extension was applauded by Diaz-Balart, Giménez and Salazar.  On April 3, Chen open up the opportunity for other TPS groups to be protected until litigation is completed. Had termination been in effect, many of the impacted persons would probably have applied for asylum.

Secretary NOEM brought up Tren de Aragua in justifying the termination of TPS for Venezuelans.

Judge Chen wrote in his 78 page decision, “[T]he Secretary’s rationale is entirely lacking in evidentiary support. For example, there is no evidence that Venezuelan TPS holders are members of the TdA gang, have connections to the gang, and/or commit crimes. Venezuelan TPS holders have lower rates of criminality than the general population. Generalization of criminality to the Venezuelan TPS population as a whole is baseless and smacks of racism predicated on generalized false stereotypes….Acting on the basis of a negative group stereotype and generalizing such stereotype to the entire group is the classic example of racism.”

The Palm Beach Post ran profiles of Venezuelan individuals in the Palm Beach area who are TPS persons.  for example, “In Venezuela, Alexandra was a teacher, a graphic designer and a political activist. She said the Venezuelan government targeted her last year due to her involvement with the opposition party and police officers raided home, taking her computer and documents from her desk….Alexandra began working at Chick-fil-A. Six months later, she returned to teaching, working at a daycare from 8 a.m. to 6 p.m. In the evening, she attends English classes. On weekends, she takes classes to become a middle school teacher.”

The threat of deportation of TPS persons has caused a high level of anxiety about the threat of ICE arrests independently of TPS.   Palm Beach County Sheriff Ric Bradshaw has said there will no “immigration sweeps” in county.  Bradshaw said at an event with Hispanic community leaders, ”If you’re in your house, in your business, in the field, we’re not going after you. No,no, no, that is not going to happen. Please, please, please tell your neighbors don’t panic about this. I promise you that is not going to happen.”

The ACLU is challenging the constitutionality of the Trump Administration’s application of the Alien Enemies Act. Its submission on April 1 regarding Trump v J.G.G. along with all other submissions is here. Below is a summary of the ACLU’s submission (with help by ChatGPT):

The submission identifies the core legal issue as whether the government can deprive individuals of liberty based solely on their national origin without individual assessment, stating that “such blanket detention policies are constitutionally suspect and legally indefensible under modern principles of due process and equal protection.”

The ACLU critiques the government’s authority to detain non-citizens designated as “alien enemies” under the Alien Enemy Act of 1798. It raises constitutional and legal objections to detention based solely on nationality, arguing that such actions lack individualized suspicion or due process. It compares contemporary use of this authority to historical examples, particularly the internment of Japanese Americans during World War II.

Fifth Amendment: The ACLU argues that the Alien Enemy Act permits detention without trial or individualized determination, which in their view contravenes the Fifth Amendment’s Due Process Clause. The submission states that this kind of detention “without notice, without a hearing, and without any opportunity to contest the basis for the detention” deprives individuals of liberty in a manner not permitted under the Constitution. “The Due Process Clause of the Fifth Amendment prohibits the government from depriving any person of liberty without due process of law—including non-citizens physically present in the United States.” The ACLU emphasizes that due process protections under the Fifth Amendment apply to “persons,” not just citizens, and therefore extend to non-citizens, including those lawfully or unlawfully present in the country.

In summary regarding the 5^th Amendment: (1) the Amendment requires a case-by-case determination before depriving someone of liberty. (2) Non-citizens are protected — Zadvydas v. Davis, 533 U.S. 678 (2001). (3) Judicial oversight Is constitutionally required. “The Constitution does not permit the executive to circumvent due process simply by labeling individuals as alien enemies.” (4)  “National origin is not a proxy for dangerousness” — detaining individuals based solely on their citizenship in an enemy state is incompatible with the Fifth Amendment’s due process protections.

Mass detention of Japanese during WW 2: The ACLU says the internment of Japanese Americans as a “stark historical warning” about the consequences of using national origin as a proxy for dangerousness. It highlights that entire populations were deprived of liberty not because of individual behavior or evidence, but solely because of their ancestry. “The government relied on ancestry and national origin—not individualized suspicion—as a basis for mass internment.” The legal and factual foundations of the Japanese internment have been formally repudiated. It cites Korematsu v. United States (1944), the Supreme Court case that upheld the internment, and references the Court’s later statement in Trump v. Hawaii, 138 S. Ct. 2392 (2018), that Korematsu was “gravely wrong the day it was decided”. “The same flawed logic that justified Japanese internment—reliance on broad assumptions rather than individual assessments—underpins the Alien Enemy Act’s categorical detention authority.”

G.W. Bush era cases: The submission draws on Ex parte Endo, 323 U.S. 283 (1944), in which the Supreme Court held that the government could not detain a concededly loyal citizen, and it references Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for the proposition that even during wartime, U.S. citizens are entitled to notice and an opportunity to rebut the government’s claims. The ACLU contends that similar procedural protections should apply to non-citizens detained under the Alien Enemy Act.

The submission also cites Boumediene v. Bush, 553 U.S. 723 (2008), which affirmed the constitutional right of non-citizens held at Guantanamo Bay to seek habeas corpus relief. It uses that decision to support its argument that courts must retain a role in reviewing the legality of executive detention: “Judicial abdication in times of crisis has historically led to some of the darkest chapters in American civil liberties.”

International treaty: It notes that detention based on nationality alone may violate the International Covenant on Civil and Political Rights and other human rights norms, stating that “arbitrary detention on the basis of nationality contravenes international standards that the United States has agreed to uphold.” The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly in 1966 and entered into force in 1976. It is one of the foundational documents in international human rights law, alongside the Universal Declaration of Human Rights. The United States signed the ICCPR in 1977 and ratified it in 1992.