Immigration Law
Can judge order US to ask El Salvador for migrant’s release? 4th Circuit says yes, return can’t be done ‘telepathically’
Immigrants deported from the United States arrive in Guatemala on an Immigration and Customs Enforcement deportation flight during President Donald Trump’s first term in February 2017. (Photo by John Moore/Getty Images)
A federal appeals court has refused to block a federal judge’s order requiring the U.S. government to “facilitate” a 20-year-old migrant’s return to the United States from a prison in El Salvador in Central America.
The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled May 19 that the Trump administration could not use the Alien Enemies Act to override a settlement. The 2024 agreement said a group of migrants who entered the United States as unaccompanied minors could not be deported before their asylum applications are adjudicated.
The Trump administration contends that it can deport suspected Venezuelan gang members under the Alien Enemies Act because they are part of a migrant invasion or predatory incursion into the United States.
The Volokh Conspiracy, MSNBC, Law360, ABC News, Politico, the Washington Post and Law & Crime have coverage of the 2-1 decision.
The case involves a Venezuelan national using the pseudonym “Cristian.”
The 4th Circuit left in place an order by U.S. District Judge Stephanie A. Gallagher of the District of Maryland that told the government to “facilitate” Cristian’s return by making “a good faith request” to the government of El Salvador “to release Cristian to U.S. custody for transport back to the United States.”
The majority opinion by 4th Circuit Judge DeAndrea Gist Benjamin responded to the dissent’s claim that Gallagher’s order constituted forced negotiation with a foreign state.
“The government cannot facilitate Cristian’s return telepathically,” Benjamin wrote. “It must express in words to the government of El Salvador that Cristian be released for transport back to the United States.”
Benjamin’s majority opinion did not reach the issue of whether Trump’s invocation of the Alien Enemies Act was valid, the Volokh Conspiracy reports in a post by Ilya Somin, a professor at the George Mason University Antonin Scalia Law School. But Judge Roger L. Gregory addressed the issue in a concurrence.
Gregory said actions of the Venezuelan gang, Tren de Aragua, do not constitute an invasion or predatory invasion within the meaning of the Alien Enemies Act.
“As a sister circuit so thoroughly explained,” Gregory wrote, “dictionary definitions, statutory context and history reveal that ‘an invasion is a military affair, not one of migration.’”
Benjamin is an appointee of former President Joe Biden, while Gregory is an appointee of former President George W. Bush, who nominated Gregory after a recess appointment by former President Bill Clinton. The dissenter, Judge Julius N. Richardson, is an appointee of President Donald Trump during his first term in office.
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