EMERGENCY DOCKET
on Apr 10, 2025
at 7:25 pm
Kilmar Armando Abrego Garcia was taken into ICE custody on March 12, before being removed to El Salvador’s notorious Terrorism Confinement Center. (Katie Barlow)
The Supreme Court on Thursday evening largely left in place an order by a federal judge in Maryland directing the government to return to the United States a Maryland man who is currently being held in a maximum-security prison in El Salvador as a result of what the Trump administration concedes was an “administrative error.” In an unsigned opinion without any recorded dissents, the court turned down the Trump administration’s request to block the ruling by U.S. District Judge Paula Xinis, which Chief Judge John Roberts had temporarily paused on Monday afternoon to give the justices time to consider the government’s request.
The justices agreed that Xinis could require the Trump administration 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” that country. But the justices sent the case back to the lower court for Xinis to “clarify” her additional instruction that the Trump administration “effectuate” his return.
In making that clarification, the justices wrote, Xinis should take note of the “deference owed to the Executive Branch in the conduct of foreign affairs.” On the other hand, they added, the Trump administration “should be prepared to share what it can concerning the steps it has taken” to secure Abrego Garcia’s return “and the prospect of further steps.”
The man at the center of the case is 29-year-old Kilmar Armando Abrego Garcia, who was born in El Salvador and came to the United States as an undocumented immigrant as a teenager to escape gang violence in his home country. Since 2019, he has lived outside Washington, D.C., with his wife – a U.S. citizen – and their three children, all of whom are also U.S. citizens.
In 2019, immigration officials began efforts to deport Abrego Garcia. When he sought to be released from immigration custody with a bond, the government contended that he was a member of MS-13, an international criminal gang.
An immigration judge denied Abrego Garcia’s request for release, finding that “the evidence shows he is a verified member of MS-13.” Although the judge acknowledged that she was “reluctant to give evidentiary weight” to Abrego Garcia’s “clothing as an indication of gang affiliation,” she concluded that it was enough that a “past, proven, and reliable source of information” had verified Abrego Garcia’s “gang membership, gang rank, and gang name.” The Board of Immigration Appeals affirmed that ruling.
Several months later, Abrego Garcia was eventually granted withholding of removal – a form of immigration relief that protects him from being deported to El Salvador. In particular, an immigration judge concluded, Abrego Garcia had shown that gang members in El Salvador continue “to threaten and harass” his family, and authorities in that country “were and would be unable or unwilling to protect him from past or feared future persecution.”
On March 12, 2025, ICE officers took Abrego Garcia into custody. He was sent to Texas and then, on March 24, to El Salvador’s notorious Terrorism Confinement Center. Detainees who arrive there from the United States are stripped, shackled, and have their heads shaved. Neither Abrego Garcia’s wife nor his lawyers have spoken with him since then.
Abrego Garcia’s lawyers filed a lawsuit in federal court in Maryland, asking Xinis to instruct Trump administration officials to “take all steps reasonably available to them, proportionate to the gravity of the ongoing harm, to return Plaintiff Abrego Garcia to the United States.”
Xinis ordered the federal government to return Abrego Garcia by 11:59 p.m. on Monday, April 7. The government, she emphasized, “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.”
Both Xinis and the U.S. Court of Appeals for the 4th Circuit declined to pause the return order while the government appealed. In a concurring opinion joined by Judge Robert King, Judge Stephanie Thacker wrote that the federal 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 Government’s contention otherwise, and its argument that the federal courts are powerless to intervene,” she concluded, “are unconscionable.”
President Donald Trump’s new solicitor general, D. John Sauer, came to the Supreme Court on Monday morning, without even waiting for the 4th Circuit to act on his request to pause the return order. He contended that Xinis had “ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m.” that night.
Sauer reiterated the Trump administration’s complaints about what he characterized as “a deluge of unlawful injunctions” by federal judges around the country. But even compared to those orders, he argued, Xinis’s order “is remarkable.” And he asked the justices to impose an administrative stay – that is, a temporary freeze on Xinis’s order to give the court time to consider the Trump administration’s request.
Shortly before 4 p.m. on Monday, Chief Justice John Roberts granted the administrative stay, and he directed Abrego Garcia’s lawyers to file their response by 5 p.m. on Tuesday.
Just a few minutes later, however, Abrego Garcia’s lawyers submitted their response. They urged the justices to deny the Trump administration’s request and order the government to “facilitate Abrego Garcia’s immediate return to halt the ongoing irreparable harm he suffers and advance the public interest in the proper administration of justice.”
Abrego Garcia’s lawyers stressed that their client “has never been charged with a crime, in any country. He is not wanted by the Government of El Salvador. He sits in a foreign prison solely at the best of the United States, as the product of a Kafka-esque mistake.” Moreover, they added, there is nothing “novel” about requiring the federal government to facilitate his return.
Xinis downplayed the government’s contention that Abrego Garcia is a member of MS-13. She emphasized that the “‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and 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 a two-page opinion released shortly after 6:30 p.m. on Thursday night, the court noted that, as a result of the administrative stay granted by Roberts on Monday, the Monday deadline for Abrego Garcia’s return “has now passed,” so that a portion of the government’s application “is effectively granted.” But, the court explained, the remainder of Xinis’s order “remains in effect but requires clarification on remand.” Specifically, the court continued, it is not clear what it means for the government to “effectuate” Abrego Garcia’s return, and Xinis may not have the power to order the government to do so.
Justice Sonia Sotomayor wrote an opinion regarding the Supreme Court’s ruling on Thursday, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. She indicated that she would have turned down the government’s request “in full.” But she nonetheless agreed with her colleagues that “the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he now been unlawfully removed to El Salvador.” This includes, she stressed, “notice and an opportunity to be heard” in future proceedings, international conventions prohibiting torture, and federal laws governing the detention and removal of noncitizens. Moreover, she added, in other kinds of immigration proceedings, the federal government has a “well-established policy” of facilitating a noncitizen’s return to the United States.
“In the proceedings on remand,” she concluded, Xinis “should continue to ensure that the Government lives up to its obligations to follow the law.”
