While a court ordered the U.S. government to pursue ‘steps to facilitate the return’ of a Salvadoran man removed from the U.S. last month, the Justice Department asserted that federal courts do not have the authority to dictate to the executive branch how to handle foreign relations and that the order only requires removal of ‘domestic obstacles’ that would hinder the man’s ability to return to the U.S.
The legal wranglings concern Kilmar Armando Abrego Garcia, who had been living in Maryland, but was removed from the U.S. last month.
‘Defendants understand ‘facilitate’ to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States. Taking ‘all available steps to facilitate’ the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here,’ a DOJ court filing declared.
‘On the flipside, reading ‘facilitate’ as requiring something more than domestic measures would not only flout the Supreme Court’s order, but also violate the separation of powers. The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner.’
Abrego Garcia has been accused of being an MS-13 gang member, but his legal challenge has denied that allegation.
‘On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error,’ according to a DOJ court filing.
Evan Katz, who identified himself as ‘Assistant Director for the Removal Division, within the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO),’ addressed the issue in a court filing.
‘Although Abrego-Garcia has an order of removal issued by an immigration judge, I understand that he should not have been removed to El Salvador because the immigration judge had also granted Abrego-Garcia withholding of removal to El Salvador. However, I also understand that Abrego Garcia is no longer eligible for withholding of removal because of his membership in MS-13 which is now a designated foreign terrorist organization,’ Katz declared.
After the U.S. District Court for the District of Maryland ordered the U.S. ‘to facilitate and effectuate’ Abrego Garcia’s return to the U.S., the Supreme Court called for the lower court to clarify the instruction.
‘The 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. The intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,’ the Supreme Court noted.
The lower court then called for defendants to ‘take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.’
