SCOTUS Chief Stays District Court Order for Alien Deported Due to ‘Administrative Error’

On April 7, Chief Justice John Roberts issued a short order in Noem v. Abrego Garcia, a case involving an alleged MS-13 member and Salvadoran national deported to El Salvador due to what the government admits was “administrative error” (that I’m not so sure about). The chief stayed a district court order directing the government to “facilitate and effectuate” the alien’s return from a Salvadoran prison in a case that smacks of judicial overreach, in addition to executive bungling.

At the outset, let me make clear that the chief justice’s order is largely ministerial, holding the case in stasis to give him and potentially all of the justices an opportunity to review the matter and weigh in more fully. That said, he didn’t have to issue it.

Kilmar Abrego Garcia

The plaintiff, Kilmar Abrego Garcia, is a native and citizen of El Salvador who entered the United States at an unknown time and place, at some point in 2011, when he would have been approximately 16 years old.

At the time of his birth, according to facts as found by the immigration judge (IJ) in his decision and order in Abrego Garcia’s removal proceedings, he lived with his parents and siblings in the Los Nogales neighborhood of San Salvador, where his mother ran a storefront business making and selling pupusas (stuffed corn cakes).

That business was subject to a shakedown racket by the Barrio 18 gang, as per the IJ’s findings, in the course of which the gang demanded monthly and then weekly “rent” payments to avoid harm. If the family could not pay, the gang threatened, his brother would be forcibly recruited into their ranks.

To avoid those threats, his brother left El Salvador and came to the United States, after which Barrio 18 turned its attention to Abrego Garcia himself. His mother refused to allow him to be taken by the gang, which prompted the gang to demand that the family either pay or give them Abrego Garcia, making clear that failing either of those options, the gang would kill Abrego Garcia.

When Abrego Garcia was 12 years old, the gang came demanding payments that the family hadn’t made, and which the mother claimed she didn’t have. When the gang members threatened to abduct the boy, his father paid them the amount demanded and they went away.

The family moved the pupusa business to a different neighborhood 10 minutes away by car called the “10th of October”. Eventually, according to the IJ, Barrio 18 caught up with the family there and again demanded the rent.

The gang members showed up at the new address on two occasions, “threatening to rape and kill [Abrego Garcia’s] two sisters and threatening” Abrego Garcia himself. Note that Barrio 18 apparently never acted on those threats, but in any event, the family eventually shut down the business and moved to yet another neighborhood, Los Andes, which was a 15-minute drive away.

In other words, Abrego Garcia lived in El Salvador for at least three years in both the 10th of October and Los Andes neighborhoods, during which both he and his family went unmolested.

Having been an immigration judge and having heard gang cases myself over a period of eight years, I can assure you that such claims are common and are almost universally denied. For what it’s worth, based solely on the IJ’s description of the facts, this is one of the weakest of this sort of case I’ve ever reviewed.

There’s a major difference between common criminality — a sad fact of life in most of the world — and “persecution” of the sort that would satisfy an alien’s burden of proof for a protection claim under the Immigration and Nationality Act (INA).

In his precedent decision in Matter of A-B-, controlling law at the time the IJ heard this claim and issued his decision, then-Attorney General Jeff Sessions explained: “The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Even assuming the evidence that Abrego Garcia offered was true, and that the IJ accurately summarized that evidence, Abrego Garcia and his family were targeted by Barrio 18 because they were perceived to have resources — either money from the pupusa business or alternatively his or his brother’s ability to serve the gang — and not for any other “protected status” that would qualify for protection here.

As relief from removal, Abrego Garcia applied for asylum, which was denied because he failed to file his application within one year of entry, a statutory bar for asylum protection.

Exceptionally, however, the IJ hearing his application granted him “statutory withholding” under section 241(b)(3) of the Immigration and Nationality Act (INA).

I say “exceptionally” for two reasons.

First, as I explained on April 4, the burden of proof for statutory withholding (“more likely than not”) is higher than the “well-founded fear” standard for asylum. Again, based strictly on the IJ’s recitation of the facts, this wasn’t a meritorious asylum case, let alone one that satisfied the more onerous “statutory withholding” standard.

Second, DHS apparently believed Abrego Garcia was “a verified member of MS-13”, which is why a different IJ denied his request for bond in a decision later sustained by the Board of Immigration Appeals (BIA).

That fact, however, was apparently never raised by the ICE attorney assigned to Abrego Garcia’s merits case and was only raised by Abrego Garcia himself in connection with his claim that he was part of the particular social group of “Salvadoran male deportees labeled as MS-13 gang members by U.S. law enforcement” — a claim the IJ who granted him statutory withholding did not consider.

Note that Barrio 18 and MS-13 were rivals in the gang violence that racked El Salvador before President Nayib Bukele’s security crackdown, which began in March 2022. Now, according to InSight Crime, more than 10,000 Barrio 18 members are in custody, and “those still at large have gone into hiding or fled the country”, though the gang remains “a significant criminal threat in the region”.

ICE Rearrest and Removal

Abrego Garcia was released from ICE custody after the IJ granted him statutory withholding in October 2019 and was married with a U.S. citizen child and purportedly working as a sheet metal worker apprentice in Baltimore, Md., on March 12, when he was pulled over by ICE officers and taken into custody.

He was subsequently moved to an ICE detention facility in Texas, prior to being sent to the Terrorism Confinement Center (CECOT) in El Salvador sometime around March 16.

Eight days later, on March 24, Abrego Garcia, his wife, and child (through counsel) filed a Complaint for Injunctive Relief and Declaratory Judgment (complaint) in U.S. district court in Maryland.

In that complaint, plaintiffs asked the court to order the government “to take all steps reasonably available to them, proportionate to the gravity of the ongoing harm, to return … Abrego Garcia to the United States”.

In all five causes of action in that complaint, plaintiffs requested roughly the same relief, an order “that Defendants immediately halt all payments to the Government of El Salvador to hold individuals in CECOT, and an order that Defendants immediately request that the Government of El Salvador release … Abrego Garcia from CECOT and deliver him to the U.S. Embassy in El Salvador”, in addition to all other “steps reasonably available to” the government.

The District Court Order

The case was assigned to U.S. district court Judge Paula Xinis, and on April 4 Judge Xinis issued an order granting the plaintiffs’ motion for a preliminary injunction.

Most notably, however, in that order Judge Xinis also directed the government “to facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025”.

At this point I will note as an aside that plaintiffs alleged (in paragraph 41 of their complaint), and the government admitted on p. 2 of its response, that Abrego Garcia received statutory withholding of removal to El Salvador, but that aside, there is no other evidence to establish that fact.

The IJ who heard his application plainly granted him statutory withholding, but statutory withholding is country-specific and can only be granted after the IJ finds an applicant is removable and orders the alien removed.

The removal order is not clearly stated in the IJ’s decision (Exhibit A attached to the complaint) but more importantly, as I explained on April 4, at three key points in that decision, the IJ refers to the future harm that Abrego Garcia would face not in El Salvador but in Guatemala.

Most critically, in his conclusion on p. 13 of his order, the IJ finds as follows:

DHS has not shown that there are changed circumstances in Guatemala that would result in the Respondent’s life not being threatened, or that internal relocation is possible and reasonable under the circumstances. Therefore, the Respondent’s application for withholding under the Act is granted. [Emphasis added.]

Looking at the decision as a whole, and at that critical finding in particular, I conclude that the IJ granted Abrego Garcia statutory withholding to Guatemala, meaning that there was nothing improper about his removal to El Salvador.

This is not a minor or picayune point — plaintiffs’ assertions in the complaint aside, there’s no evidence in or attached to the complaint establishing Abrego Garcia was ever granted statutory withholding to El Salvador. Representations of counsel don’t count in this context, and this issue goes is the heart of plaintiffs’ claims and thus a fact they were required to prove to receive any relief.

The government did admit that fact in its response (which satisfied plaintiffs’ burden), as stated above, and maybe (perhaps likely) they know something I don’t know from my review of the record, but I’m still not convinced that Abrego Garcia’s removal to El Salvador was improper.

The Circuit Court

With that out of the way, DOJ sought a stay pending appeal and immediate administrative stay of Judge Xinis’s order from the U.S. Court of Appeals for the Fourth Circuit on April 5. DOJ’s Emergency Motion begins:

Late Friday afternoon, a federal district judge ordered the United States to force El Salvador to send one of its citizens — a member of MS-13, no less — back to the United States by midnight on Monday. If there was ever a case for an emergency stay pending appeal, this would be it.

Kilmar Armando Abrego Garcia is presently being held in El Salvador, by the El Salvadoran Government. The United States does not have control over Abrego Garcia. Or the sovereign nation of El Salvador.

That likely gives you a sense of the first of the government’s key points, i.e., Judge Xinis lacks jurisdiction over El Salvador and can’t force that sovereign nation to release one of its own citizens from prison, but lest there be any dispute over those facts, plaintiffs admitted as much in paragraph 4 of their Emergency Ex Parte Motion for a Temporary Restraining Order, which they also filed on March 24.

The second key point in the Emergency Motion filed with the Fourth Circuit is as follows:

No federal court has the power to command the Executive to engage in a certain act of foreign relations; that is the exclusive prerogative of Article II, immune from superintendence by Article III. But that is exactly what this order does. Indeed, it is the only thing it does — requiring Defendants, on the clock, to try to force a foreign country to take a discrete action.

A three-judge panel of the Fourth Circuit denied that motion in an order issued on April 7, with Judge J. Harvie Wilkinson III writing a separate concurrence that put the best possible spin on Judge Xinis’s order:

We are seemingly caught between two legitimate principles here. One is the fear that the government will preemptively transport — without due process and in contradiction to court orders — residents of this country to other nations and then cite its Article II powers for the proposition that courts are powerless to redress the action. Two is the concern that federal courts can require the Executive Branch to dictate to other sovereign countries the release of their own citizens from their own facilities for return to the United States.

The conflict between the two principles, however, may be more apparent than real. Construing the trial court’s direction to the government to “facilitate” Abrego Garcia’s release relieves the government of its fear that it is breaching the sovereignty of another nation by demanding the release of its own citizens whom it is detaining. Positing the government’s duty as simply one of facilitation also softens the tension between the judicial and executive branches. Further confining the district court’s directive as an opportunity for the government to correct its own admitted error allays the concern that the Judiciary is on the verge of some broad intrusion into what rightly are executive diplomatic powers. [Emphasis added.]

I have only the highest respect for Judge Wilkinson, the most senior judge on the Fourth Circuit and an estimable jurist, and with that in mind, my only response is that I hope Judge Xinis intended her order as charitably as he described it.

The problem is that she also ordered the government to effectuate Abrego Garcia’s return to the United States by midnight on April 7 or run the risk that administration officers and ICE officials — the named defendants in the case — will be held in contempt.

The Chief Justice’s Order

Finding no relief at the circuit, the government filed an application to vacate Judge Xinis’s injunction with the chief justice as the circuit justice for the Fourth Circuit.

As DOJ explained therein:

Even amidst a deluge of unlawful injunctions, this order is remarkable. Even respondents did not ask the district court to force the United States to persuade El Salvador to release Abrego Garcia — a native of El Salvador detained in El Salvador — on a judicially mandated clock. For good reason: the Constitution charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists, including by effectuating their removal. And this order sets the United States up for failure.

Chief Justice Roberts issued an order staying Judge Xinis’s order on April 7, “pending further order of the undersigned or of the Court”, and gave plaintiffs until close of business on April 8 to file a response.

The chief offered no explanation for why he stayed the district court order, but I have some ideas.

The government offers no defense for its actions in removing Abrego Garcia despite the IJ’s order, but that hardly justifies the district court’s intrusion into not only the president’s sovereign realm (diplomatic relations), but El Salvador’s (its actual sovereignty) to boot. To paraphrase Harry Callahan, “a district court’s got to know its limitations”.

At some point, possibly before further court action in this matter, Abrego Garcia will be returned to the United States and DHS will likely begin trying to remove him again. But for now, the government is no longer “on the clock, trying to force a foreign country to take a discrete action”.