Judge Dismisses DOJ Suit Against Maryland Federal District Court Judges . . .

As I reported on June 27, DOJ filed a complaint in the U.S. District Court for the District of Maryland (D. Md.) against all 15 judges in that same court, seeking to block a standing order issued by that court that gives every alien facing removal who files specified papers an automatic stay from deportation. On August 26, Judge Thomas T. Cullen of the U.S. District Court for the Western District of Virginia (W.D. Va.) issued an opinion dismissing that complaint — while offering a roadmap for DOJ to follow to achieve its goals.

“Standing Orders”

As the Committee on Rules and Practice of the Judicial Conference of the United States (the latter being “the national policymaking body for the federal courts”) has explained:

For years, judges and lawyers have been concerned about the proliferation of “standing orders[]” … in the federal district courts. The term “standing orders” describes orders — including “administrative orders” or “general orders” — adopted by district courts or bankruptcy courts as district-wide or division-wide orders, without an opportunity for notice or public comment.

Those ”concerns” are that local standing orders undermine uniformity across the 94 federal district courts (“undermining consistency in areas where the national rules were meant to provide it and creating traps for the unwary and even for the wary”); they are promulgated without public input; they are hard to find; and that there are variations of such orders between different districts and even different judges.

In most law schools, students spend two semesters on the national rules of federal court procedure (and even then, only get a handle on them in practice), so you can imagine the complexity added by local rules — not that I expect anyone to have sympathy for lawyers.

Amended Standing Order 2025-01

The standing order in question is Amended Standing Order 2025-01, issued by the D. Md. on May 28.

It’s a slightly different version of a standing order (Standing Order 2025-01) issued by Chief Judge George L. Russell III on May 21 that I analyzed on May 27. There’s not much difference between the two orders, and the flaws I identified in the first iteration carried over to the amendment.

Most saliently, both enjoin and restrain DHS for two business days from removing any alien who properly files a petition for writ of habeas corpus and other information with the D. Md.

The court apparently doesn’t think that a two-day delay makes much difference, but then the judges on that court don’t have much experience in immigration, either.

That’s not a dig at the esteemed jurists on the D. Md.; as Judge Cullen notes in his first footnote in his opinion, “Congress has limited the authority of federal district courts to review immigration matters”, and consequently they rarely get into the nuts and bolts of the process.

In practice, however, DHS must have three things to physically remove an alien under the Immigration and Nationality Act (INA): (1) an order of removal; (2) a travel document issued by the country of removal; and (3) a plane ticket or a seat on a chartered flight out of the United States.

Removal orders are evergreen (unless and until they are reopened, reversed, or rescinded), but travel documents are often issued for limited windows of time, plane tickets expire, and vacant seats on charters are a waste of taxpayer’s money.

In other words, this isn’t a simple issue of executive branch peevishness in response to a standing order that forces them to wait a few days.

“Judicial Review”

Nor is district court review necessary from a due process standpoint in any but the most exceptional cases.

That’s because Judge Cullen could not have been more correct in his initial footnote: Congress twice — in 1996 and again in 2005 — amended section 242 of the INA to cut the district courts out of the judicial review process for final orders of removal.

That’s not to say aliens under final orders aren’t entitled to seek judicial review of administrative removal orders. As I explained in May:

In section 106 of the REAL ID Act of 2005 … Congress amended the judicial review provisions in section 242 of the Immigration and Nationality Act (INA) to channel aliens’ challenges to final removal orders away from the district court to the U.S. Courts of Appeals.

Specifically, section 242(g) of the INA provides:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. [Emphasis added.]

Section 242(a)(2) of the INA eliminates all court review of certain issues (like denials of some forms of discretionary relief), but otherwise section 242(b) allows aliens to file a “petition … with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings” within 30 days to seek judicial review of their removal orders.

There are rare cases in which a district court could properly review an alien’s claim, but when it comes to most alien claims, Congress deliberately cut district courts out of the process entirely.

The “Rare Case” of Kilmar Abrego Garcia

Which brings me to the “rare case” of Kilmar Abrego Garcia.

I will spare you the extensive legal analysis of that case (which you can find elsewhere), to note that in March, Abrego was (1) under a final order or removal; that (2) permitted DHS to remove him to any country other than El Salvador, from which an immigration judge in 2019 (in a truly convoluted order) granted him “statutory withholding of removal” under section 241(b)(3) of the INA.

Of course, Abrego was living in Maryland when DHS arrested him in March and summarily removed him to the one country it allegedly couldn’t, El Salvador.

DOJ later admitted it removed Abrego “in error”, but not until after Abrego’s family filed suit with the D. Md. to have him returned to the United States. The case was assigned to Judge Paula Xinis, and let’s just say that after she ordered the government to return Abrego, she wasn’t happy with either the speed or the manner with which the government complied with her order.

I have no insight into the deliberations that preceded the issuance of either of these standing orders, but it’s not much of a stretch to conclude Abrego’s case precipitated both.

Having handled immigration cases over the course of decades, I can tell you that while such erroneous deportations occur, they are few and far between. When aliens are erroneously deported, the State Department almost always locates the alien and DHS gives the alien a travel document back and allows the alien to return.

The government’s compliance with Judge Xinis’s return order in Abrego’s case was complicated by the fact that as soon as he landed in El Salvador, the Salvadoran government immediately took him into custody and put him in prison.

Usually, when aliens are deported home, they are admitted and hit the street. But that’s not what happened in Abrego’s case, and nowhere in any of the thousands of barrels of ink that has been spilled about his case has anyone asked why he was detained in El Salvador.

The popular consensus is that the Trump administration asked El Salvador to detain him, but respectfully, that doesn’t make any sense: So long as he’s not in this country, who cares where he goes or whether he’s free or detained abroad?

That suggests the Salvadoran government decided on its own to detain him, but regardless, Abrego’s return in accordance with Judge Xinis’s order required a diplomatic negotiation between Washington and San Salvador.

Still, the inescapable conclusion is that the D. Md. treated Abrego’s removal as the rule, not the wild exception that it was, which is why it issued these two standing orders.

Judge Cullen’s Order

Because all 15 judges on the D. Md. were defendants, they were all recused from hearing the case, and the Court of Appeals for the Fourth Circuit tapped Judge Cullen of the W.D. Va. to hear the matter.

His order dismissing the DOJ complaint is 37 pages long, but overly simplistically, it comes down to his conclusion that the judiciary and the executive are equal branches of government and there’s no mechanism in law or precedent that allows disputes between the two to be resolved in this manner.

But that’s not to say that his order is a ringing endorsement of the standing orders, either. As he explained:

According to the Executive, the standing orders are unlawful for three principal reasons. First, the Executive argues that they are inconsistent with the Federal Rules of Civil Procedure because they automatically afford injunctive relief only to a special class of litigants (i.e., removable aliens) without requiring those litigants to satisfy the prerequisites for this type of equitable relief. Second, the Executive contends that the standing orders are ultra vires — or beyond the power of the court — given the limited statutory authority of district courts to review immigration matters. Third, the Executive submits that, in issuing the orders, the District of Maryland violated well-established procedures for promulgating local rules of court.

Fair enough, as far as it goes.

The Proper Forum

He continued, noting that “If these arguments were made in the proper forum, they might well get some traction,” while clarifying that the proper forum was not the D. Md. but rather the appellate Fourth Circuit, either on a direct appeal of one of the habeas cases the orders focus on or “by petitioning the Judicial Council of the Fourth Circuit, which has the authority to rescind or modify local court rules”.

The statute governing federal courts’ rulemaking power, 28 U.S.C. § 2071, states at clause (c)(1) that, “A rule of a district court … shall remain in effect unless modified or abrogated by the judicial council of the relevant circuit”, while 28 U.S.C. § 332(d)(4) gives those judicial councils authority to “periodically review” rules established by the district courts and abrogate any rule “found inconsistent”.

Of those two choices, a direct appeal seems to me to be preferable as it would get these standing orders to the Supreme Court for review most expeditiously. Whether DOJ listens to Judge Cullen, however, is an open question.

A “More Confrontational Path”

Finally, the judge complains that instead of either of those options, DOJ “chose a different, and more confrontational, path entirely”, adding in a footnote:

Indeed, over the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as “left-wing,” “liberal,” “activists,” “radical,” “politically minded,” “rogue,” “unhinged,” “outrageous, overzealous, [and] unconstitutional,” “[c]rooked,” and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.

It would be ideal if the three branches of our federal government treated one another with the highest degree of respect and courtesy, but let’s not forget that President Jefferson and Chief Justice Marshall were not only the heads of their respective branches but also second cousins, and yet fought like cats and dogs.

And while castigating the executive branch, perhaps Judge Cullen should look at how Trump’s been treated by his own circuit.

In writing for the majority of the Fourth Circuit its June 2017 opinion in Trump. v. International Refugee Assistance Project, then-Chief Judge Robert Gregory complained that Trump’s Executive Order (EO) 13780 (the second so-called “travel ban”) “in context drips with religious intolerance, animus, and discrimination”, while his colleague, Judge Andrew Wynn, in concurrence described the EO as “naked invidious discrimination against Muslims”.

That language prompted Judge Paul Niemeyer, writing for himself and two other judges in dissent to take Judges Gregory and Wynn to task, asserting their “opinions … betray an object beyond a disciplined analysis” and that their “statements flatly mischaracterize an order that undisputedly contains no facial reference to religion”.

“Politics Ain’t Beanbag”

As the saying goes, “politics ain’t beanbag”, and the more judges delve into political questions reserved to the other branches, the more likely they are to learn that truism.

For now, Maryland U.S. district court judges can keep blocking removal orders despite limits on their jurisdiction in section 242 of the INA, but maybe it’s time for the Supreme Court to revisit the language of the act and keep the courts in their proper lane.