The Supreme Court gave the Trump administration a last-minute reprieve on Monday, with Chief Justice John Roberts saying the U.S. does not need to immediately retrieve Kilmar Armando Abrego Garcia, the Maryland resident who the administration mistakenly deported to El Salvador.
The high court issued a temporary stay in the case after the administration filed an emergency appeal of a lower court ruling that had mandated Abrego Garcia’s return by midnight.
Abrego Garcia became the center of controversy after the Trump administration admitted that it sent him to El Salvador’s infamous detention center by accident, after previous court rulings determined he could not be sent back to El Salvador because he could become the target of gang violence.
Abrego Garcia and his family sued the government seeking his return. Over the weekend, U.S. District Court Judge Paula Xinis in Maryland ordered the government to return him from El Salvador’s Terrorism Confinement Center. But her 11:59 p.m. Monday deadline set off a race as the Trump administration sought to put the order on pause.
On Monday morning, a federal appellate panel in Virginia moved to support Xinis’ order. Fourth Circuit Judge Stephanie D. Thacker, in an opinion with Judge Robert B. King concurring, wrote that the “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, are unconscionable.”
A third judge on the panel, J. Harvie Wilkinson III, questioned whether a trial court had the power to command El Salvador to comply and tried to soften the brewing fight between government branches by suggesting that the government opt instead to simply “facilitate” Abrego Garcia’s return. He still concluded that “there is no question that the government screwed up here.”
The rapid escalation through the federal court system and ticking clock put pressure on the Supreme Court to intervene.
Just as that appellate decision came down, Trump’s recently-confirmed solicitor general, D. John Sauer, authored a 26-page petition asking the Supreme Court to step in and stay the order.
In it, he accused Abrego Garcia of being a member of the Central American gang MS-13 — without evidence — and reasoned that he is “no longer eligible for withholding of removal” because the gang’s members “have since been designated members of a foreign terrorist organization.”
The trial court judge had already rejected that accusation, saying that the government’s claim was based on Abrego Garcia “wearing a 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 Sauer’s Supreme Court petition, the Trump administration also claimed that “the United States has ensured that aliens removed to CECOT in El Salvador will not be tortured, and it would not have removed any alien to El Salvador for such detention if doing so would violate its obligations under the Convention Against Torture.” Videos released by the Central American nation’s president show how migrants deported by U.S. agents were dragged from buses, paraded by guards and shaved.
Indicative of how rapidly the legal fight is charging forward, Roberts ordered the family’s lawyers to respond by Tuesday afternoon — only to have them reply minutes later.
In the response, a team of seven attorneys argued that Abrego Garcia is technically still in U.S. custody, echoing the appellate panel’s conclusion that the Trump administration is essentially using El Salvador as a for-profit jail that just happens to be abroad. It’s a claim that’s supported by the words of Salvadoran President Nayib Bukele himself, who touted in February that his country “offered the United States of America the opportunity to outsource part of its prison system.”
Abrego Garcia was on the deportation flights the Trump administration sent to the mega-prison last month. The flights drew headlines partly because of the administration’s use of the Alien Enemies Act, which allowed the administration to deport migrants without due process.
In a separate case, D.C.’s chief federal judge had ordered those flights returned and is now considering whether the Trump administration should be held in contempt of court.
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Jose Pagliery is a reporter at NOTUS. Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow.