Supreme Court rejects administration's view that it can deport without a hearing

Case of wrongly deported immigrant highlights need for hearings

“Never Give an Inch” is the title of Mike Pompeo’s book about his time as Secretary of State in the first Trump administration. It’s a good slogan and not a bad philosophy, as long as you don’t take “never” literally. (Pompeo didn’t. As I recall there was at least one occasion in which, he confesses, he backed off.)

The Trump administration seems to be literal about never giving an inch. It wouldn’t even admit that plans for attacking the Houthis were classified information, after top officials were revealed to have discussed them on an unsecure app.

At least that stubborn position didn’t harm anyone. It just made the officials involved look ridiculous.

But now, the administration is refusing to give an inch on an immigrant it wrongfully sent to a notorious prison in El Salvador. In doing so, it is doing real life damage to a family and taking a position that could harm many others.

The man in question, Kilmar Armando Abrego Garcia, is a Salvadoran national. He was illegally present in the United States, but subject to an immigration court order that prohibited the government from deporting him to El Salvador.

The basis for that order was that, because he had been targeted by a vicious gang in El Salvador, "he was more likely than not to be harmed if he was returned” there. Unfortunately, notwithstanding that order, he now finds himself in an El Salvador prison that houses tens of thousands of gang members.

There is no denying that Abrego Garcia’s deportation was an error. However, the Trump DOJ argues that our government lacks authority to get him back from his native country and that our courts lack authority to order the administration to attempt it.

When a U.S. district court judge, Paula Xinis, disagreed, the DOJ appealed. It also suspended the DOJ lawyer who represented it in court for admitting that deporting Abrego Garcia was a mistake and saying that he did not have a good answer for why the U.S. can’t get him back. Apparently, the lawyer gave too many inches.

The Fourth Circuit Court of Appeals affirmed the district court’s ruling. J. Harve Wilkinson, a great conservative judge, concurred. He read the district court’s opinion as requiring that the government “facilitate” Abrego Garcia’s return, rather than demanding it.

The reality — the one the DOJ lawyer didn’t have an answer to — is that the Trump administration could easily bring about Abrego Garcia’s return. Its leverage over the government of El Salvador is undeniable, and not just because it is paying that government to house illegal immigrants we deport. A simple phone call from Trump to El Salvador’s president surely would bring the hapless prisoner home. Nor is there any reason to believe that this affair is other than a matter of complete indifference to El Salvador’s president.

Yet, the Trump DOJ resists taking such action. It won’t give an inch.

The DOJ claims that Abrego Garcia has ties to gangs in America. However, the district court found no credible evidence to support the government’s claim.

In any case, the earlier order of the immigration court barring deportation stands. If there is evidence of gang membership or activity, the government should seek the reversal of the order prohibiting deportation.

The mistaken deportation of Abrego Garcia highlights the importance of granting immigrants a hearing before deporting them. Everyone knows the government makes mistakes and that mistakes are all the more likely when the government acts with haste, as it’s doing on the immigration front. Conservatives understand this better than most.

On Monday, the Supreme Court decided by a vote of 9-0 that, indeed, the government can’t deport people under the Alien Enemies Act without granting them a hearing. The decision came in a different case relating to the same deportations to El Salvador that saw Abrego Garcia removed. In this case, the government challenged rulings in favor of the deportees by Judge James Boasberg.

The Court stated:

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.

The administration claims victory in the case because the Court vacated Boasberg’s orders, having deemed Washington D.C. the wrong venue for the plaintiffs to challenge their deportations. But though the Supreme Court ruled that Boasberg lacked jurisdiction, it agreed with him that the Trump administration cannot deport migrants without due process.

Thus, as Jason Willick explains, the Court unanimously disagreed with Stephen Miller’s contention that “it is fundamentally incompatible to have a country and have individual expulsions adjudicated by a single district court judge.” It also rejected the DOJ’s contention that the AEA permits absolute discretion to establish the conditions and processes the Executive will use to deport immigrants, and that “nothing requires the government to delay removal to permit access to habeas on the alien’s preferred timeline.”

To call the Supreme Court’s rejection of the government’s core view of the AEA a victory is to move the goal posts. That’s giving up yards, not inches.

By vacating Boasberg’s orders, the Court avoided a direct confrontation with the administration. But it seems like just a matter of time until the confrontation comes. At that point, we’ll see whether it’s the executive or the judicial branch (or neither one) that gives an inch.