A federal appeals court on Thursday rejected a bid by the Trump administration to block an order directing it to facilitate the return of a mistakenly deported man, saying it was trying to claim “a right to stash away residents of this country in foreign prisons without the semblance of due process.”
The 4th U.S. Circuit Court of Appeals ruled in the case of Kilmar Abrego Garcia amid accusations that the administration has been giving short shrift to deportees’ due process rights, and after President Donald Trump and Vice President JD Vance have complained those protections are hampering their efforts at mass deportations.
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The administration is challenging a judge’s order that it “facilitate” the return of Abrego Garcia, who the Justice Department has acknowledged should not have been sent to a prison in his native El Salvador because of an immigration judge’s 2019 order barring such action.
It’s part of a larger running battle between the Trump administration and the courts. The administration has stretched existing law with new executive orders and novel legal theories, and a number of federal courts have acted to rein it in — with Trump and allies then firing back in the court of public opinion, accusing the judges of overstepping their authority.
“The relief the government is requesting is both extraordinary and premature,” U.S. Circuit Judge J. Harvie Wilkinson III wrote in Thursday’s unanimous decision by a three-judge panel.
The government “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.”
The administration downplayed the lack of due process in its filing to the appeals court. It contended that Abrego Garcia is a member of the MS-13 gang, a claim he denies, and is legally eligible to be deported to El Salvador since Trump has designated the gang a foreign terrorist organization.
What due process for Abrego Garcia would look like
The administration did not go through formal procedures, which would involve filing a motion to reopen Abrego Garcia’s deportation case, immigration law experts told NBC News.
“There would be a process. ICE would need to move to reopen his removal case, provide due process, have a hearing,” said Rebekah Niblock, an immigration lawyer at the Catholic Legal Immigration Network.
There would also be litigation over his alleged membership in MS-13.
“That is an issue that a judge would have to rule on and would be litigated heavily,” said Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, a nonprofit advocacy group.
An immigration judge determined Abrego Garcia was a member of the gang in 2019, but the evidence that judge relied was recently questioned by U.S. District Judge Paula Xinis, the federal judge in Maryland presiding over the mistaken deportation case.
Xinis noted that Abrego Garcia has no criminal convictions in the U.S. or El Salvador, and said the evidence meant to support allegations of gang affiliation “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.”
Wilkinson, who was nominated to the bench by President Ronald Reagan, pointed to that dispute in his ruling.
“The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” he wrote.
Trials would take '100 years'
In posts on social media this week, Trump and Vance have complained that courts giving due process protections to deportees are slowing the administration’s efforts to ramp up deportations.
On Truth Social, Trump criticized court proceedings around immigration, saying it would take “many years of long and tedious trials to fly each and every one of them back home. Where is the JUSTICE here???”
Trump was referring to an order Monday from a federal judge in Massachusetts blocking the administration’s plan to bring an early end to a program allowing hundreds of thousands of immigrants from Cuba, Haiti, Venezuela and Nicaragua to temporarily live and work in the U.S. legally. The judge said the participants had been accepted into the program on a case-by-case basis, and therefore any revocations should be done on a case-by-case basis as well.
“Based on the Court System, that would take approximately 100 years,” Trump complained.
In a series of X posts on Tuesday, Vance suggested the scale of the issue outweighed due process concerns.
“Here’s a useful test: ask the people weeping over the lack of due process what precisely they propose for dealing with Biden’s millions and millions of illegals. And with reasonable resource and administrative judge constraints, does their solution allow us to deport at least a few million people per year?” he wrote in one post.
Limited due process for immigrants
Legal experts say that immigrants who try to enter the U.S. illegally or who have lived in the country without legal status are already at a legal disadvantage and have limited due process rights.
That applies especially to those who are detained at or close to the border, where they can be quickly ejected. While long-term U.S. residents could assert due process rights, that doesn’t mean they will, as often they do not have legal assistance.
That situation has gotten worse as the Trump administration has cut resources for groups that represent refugees, Niblock noted.
“There’s not much help out there,” she said.
Contempt and more due process concerns
Concerns over due process have been an issue in other court cases against the administration. A federal judge in Washington, D.C., on Wednesday found probable cause to hold the administration in contempt for disregarding an order halting deportation flights to El Salvador last month.
Judge James Boasberg had issued the order after lawyers for immigrants the administration accuses of being in the Tren de Aragua gang said their clients, who denied they’re members, were being deported without notice or the opportunity to challenge the administration’s allegations against them under the Alien Enemies Act.
The Supreme Court later vacated the order on jurisdictional grounds, but held that “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 relief in the proper venue before such removal occurs.”
In a court filing Thursday, attorneys for the detainees said the administration was not giving detainees a “reasonable” amount of time, and had said at a hearing in Texas last week “that it was not ruling out the possibility that AEA removals would resume with only 24 hours’ notice.”
Boasberg said the government could purge his contempt by taking custody of the people it deported despite his order and giving them hearings so they can challenge the allegations against them. The “Government would not need to release any of those individuals, nor would it need to transport them back to the homeland” for that process, he wrote.
The Justice Department is appealing his ruling.
The administration’s appeal in the Abrego Garcia case is challenging Xinis’ ruling directing federal officials to try to secure his return, and her order for them to turn over more information on what steps have been taken to get him back — language that predominantly mirrored a Supreme Court ruling last week that largely upheld her prior order.
Wilkinson said the administration should comply with Xinis’ order.
“While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision,” he wrote.
“We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time,” Wilkinson added.
The administration also asked Xinis to pause her ruling while it appeals. She rejected that request Thursday.
