SCOTUS: Government Must ‘Facilitate’ Return of Alien Removed Due to ‘Administrative Error’

The Supreme Court, in a 6-to-3 opinion, held Thursday that the government must “facilitate” the return of a national of El Salvador removed to that country nearly four weeks ago despite his having received “statutory withholding”, which granted him limited status in the United States. The majority is cleaning up both the government’s and the district court’s errors, in the gentlest of ways, but take a look at the separate statement of Justice Sotomayor, which elides the confusing grant of that status by an immigration judge, confusion that may have led to the government’s “erroneous” removal decision. 

Kilmar Abrego Garcia

The case is Noem v. Abrego Garcia, the lead respondent being the removed Salvadoran national in question, Kilmar Abrego Garcia. 

On April 4, I provided a lengthy description of his immigration history, but here are the basics: He entered illegally in 2011 and was taken into custody by ICE in March 2019, based both on his illegal status and on evidence linking him to MS-13, a violent criminal organization with its roots in Los Angeles and at the time a significant presence in El Salvador and elsewhere.

In April 2019, an immigration judge (IJ) in Baltimore, Md., denied Abrego Garcia’s request for bond, finding that the evidence in the case “shows that he is a verified member of MS-13”. He appealed that denial of bond, but the Board of Immigration Appeals (BIA) adopted and affirmed what it referred to as the IJ’s “danger ruling” eight months later. 

As the BIA explained in its December 2019 decision, “the Immigration Judge appropriately considered allegations of gang affiliation against the respondent [Abrego Garcia] in determining that he has not demonstrated that he is not a danger to property or persons”. 

He filed an application for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA), and withholding of removal under the Convention Against Torture (CAT). 

Section 241(b)(3) withholding of removal is referred to as “statutory withholding” to distinguish it from “CAT withholding”, which is implemented by regulation, not the INA.

That application was assigned to a different IJ, who granted Abrego Garcia’s application for statutory withholding on October 10, 2019, while denying his applications for asylum and CAT. 

The alien’s alleged membership in MS-13 was mentioned only tangentially by the second IJ, and only in reference to a separate claim Abrego Garcia made in connection with his applications that the IJ refused to address.

Abrego Garcia was released following that grant, but was rearrested by ICE on March 12, 2025, after which he was transferred to a detention facility in Texas. Thereafter, he was removed to the Terrorism Confinement Center (CECOT) in El Salvador sometime around March 16 under an agreement the Trump administration has struck with the government of that country. 

As part of that agreement, the U.S. government allegedly pays El Salvador to detain aliens it removes to that country, and in Kilmar Garcia’s case, El Salvador appears to be living up to its side of the bargain.

The government’s removal of Abrego Garcia to El Salvador despite the fact that he had been granted statutory withholding caused a firestorm in the press, which was only fed by the government’s admission it had removed him due to “administrative error”.

The District Court Order

On March 24 — nine days after he arrived in El Salvador — Abrego Garcia, his wife, and minor child, through counsel, filed a “Complaint for Injunctive Relief and Declaratory Judgment” (complaint) in federal district court in Maryland.

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

The case was assigned to U.S. district court Judge Paula Xinis, and on April 4, she issued an order granting the plaintiffs’ motion for a preliminary injunction. The terms of that order formed the basis of the government’s later appeal to the U.S. Court of Appeals for the Fourth Circuit, and ultimately its application to the Supreme Court. 

That’s because in her order, Judge Xinis demanded that the U.S. government “facilitate and effectuate the return of . . . Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025”.

That order seemingly ignored the fact that, while both district court judges and the executive branch are powerful institutions, El Salvador is a sovereign country and can do with its citizens as it pleases. 

What Judge Xinis was seemingly doing in ordering the government to “effectuate” the return of Abrego Garcia was demanding that the administration engage in quickie three-day diplomatic negotiations with San Salvador and (moreover) demanding that the result of those negotiations be the return of Abrego Garcia — again, a Salvadoran citizen — to the United States before the clock struck midnight on April 8. 

There are reams of caselaw, both ancient and modern, that limit to the point of negating the authority of the U.S. judicial branch when it comes to interfering with the president’s foreign affairs power, but such impermissible intermeddling appeared to be the point of the district court’s order. 

The Fourth Circuit

As I explained on April 8, the government quickly asked the Fourth Circuit to stay Judge Xinis’s order, noting (dryly) it is Emergency Motion: “The United States does not have control over Abrego Garcia. Or the sovereign nation of El Salvador.”

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 in which he essentially rewrote Judge Xinis’s directive demanding the government “effectuate” Abrego Garcia’s return by 11:59 PM that night. 

According to Judge Wilkinson:

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. 

Having practiced law in the Fourth Circuit, I can assure you that Judge Wilkinson is held in the highest esteem by the bar, and such a novel interpretation of the lower court’s order here only burnishes his reputation.

The problem is that his sage spin was a concurrence and the Fourth Circuit’s denial as a whole left Judge Xinis’s overreaching order in effect.

The Supreme Court Steps In

On the clock and under the gun, on April 7, the government filed an application to vacate Judge Xinis’s order with Chief Justice John Roberts, the circuit justice for the Fourth Circuit.

The chief justice quickly issued an administrative stay of the district court order hours later to give the full Court the opportunity to consider the government’s application, and on April 10, all nine justices issued an opinion weighing in on the hotly contested legal issues in the case.

The Court noted that Judge Xinis’s order “properly requires the Government 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 El Salvador”. 

They remanded the matter to Judge Xinis, however, to “clarify” her directive demanding the government “effectuate” the alien’s return, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”. 

The Court also preemptively tried to limit attempts by the government to stonewall Judge Xinis over its efforts to return Abrego Garcia, warning the government it “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps”. (Emphasis added.) 

The government raised the “state secrets privilege” when a district court judge in Washington, D.C. demanded facts about its removal of suspected Tren de Aragua members to CECOT, and the justices likely fear a similar response here. That would likely bring the case back to a Supreme Court that has plenty of other work to keep it busy. 

Justice Sotomayor’s Statement

Justice Sotomayor issued a separate statement on the case, which Justices Kagan and Jackson joined, excoriating the government for failing to bring an alien whom it removed due to “oversight” back to the United States more quickly. 

Interestingly, the justice refers to the second IJ’s decision when she makes the following claim: 

The Government remains bound by an Immigration Judge’s 2019 order expressly prohibiting Abrego Garcia’s removal to El Salvador because he faced a “clear probability of future persecution” there and “demonstrated that [El Salvador’s] authorities were and would be unable or unwilling to protect him.”

The bracketed reference to El Salvador, which appears in the original, is telling. 

That’s because as I explained on April 4, not only is the second IJ’s order — the one Justice Sotomayor quotes, granting Abrego Garcia statutory withholding — wrong as a legal matter, but it’s also confusing, as it refers on three separate occasions with respect to three key points not to the danger the alien would face in El Salvador but instead in Guatemala. 

Here’s the full text of the portion of that decision Justice Sotomayor quotes: 

Given his testimony and other evidence concerning official corruption and other abuses, [Abrego Garcia] has demonstrated that authorities were and would be unable or unwilling to protect him from past or feared future persecution. Given country conditions and the Respondent’s inability to avoid the threat through internal relocation, the Respondent could not necessarily avoid the threat through internal relocation, nor would it be reasonable to expect him to do so. DHS has failed to carry their burden to show 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. [Emphasis added.]

Justice Sotomayor’s statement reveals that she (or more likely one of her clerks) has read the second IJ’s decision and thus should have realized that the restrictions on the government’s authority to remove Abrego Garcia to El Salvador are not as clear-cut and unequivocal as she would have the reader believe.

Those references to Guatemala in the second IJ’s decision aren’t a simple harmless scrivener’s error; statutory withholding is country-specific, as it bars removal only to a specified country or countries. But he failed to state which country or countries he withheld removal to, though reading his decision fairly, it’s Guatemala. 

That means that the multiple references to the harm the respondent would face in Guatemala in the IJ’s second decision go to the heart of Abrego Garcia’s claims, in a case that has now been before three different courts and 13 different jurists, none of whom ever mentions the equivocal nature of the restrictions on the government’s ability to remove the alien in question to El Salvador.

For what it’s worth, however, the same is true of the DOJ lawyers who have written multiple briefs in this case. Why haven’t they at least mentioned it, if only in passing?

Words Matter

There’s plenty of blame to go around in this case, and not all of it falls on government officials who admit (potentially mistakenly) that they removed Abrego Garcia to El Salvador due to “administrative error”. Words matter, and the district court judge here should choose her words more judiciously. The justices are too busy to serve as her editors, or clerks.