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Chief Justice John G. Roberts Jr. on Monday temporarily blocked a trial judge’s order directing the United States to return a Salvadoran migrant it had inadvertently deported.
The chief justice, acting on his own, issued an “administrative stay,” an interim measure meant to give the justices some breathing room while the full court considers the matter. He ordered the migrant’s lawyers to file their brief on Tuesday.
The order came just hours after the administration asked the court to block the trial judge’s order directing the United States to return the migrant by 11:59 p.m. on Monday.
Judge Paula Xinis of the Federal District Court in Maryland had said the administration committed a “grievous error” that “shocks the conscience” by sending the migrant, Kilmar Armando Abrego Garcia, to a notorious prison last month.
In the administration’s emergency application, D. John Sauer, the U.S. solicitor general, said Judge Xinis had exceeded her authority by engaging in “district-court diplomacy,” because it would require working with the government of El Salvador to secure his release.
“If this precedent stands,” he wrote, “other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business,” he wrote. “Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States’ diplomatic relations with the whole world.”
He said it did not matter that an immigration judge had previously prohibited Mr. Abrego Garcia’s deportation to El Salvador.
“While the United States concedes that removal to El Salvador was an administrative error,” Mr. Sauer wrote, “that does not license district courts to seize control over foreign relations, treat the executive branch as a subordinate diplomat and demand that the United States let a member of a foreign terrorist organization into America tonight.”
The administration contends that Mr. Abrego Garcia, 29, is a member of a violent transnational street gang, MS-13, which officials recently designated as a terrorist organization.
Judge Xinis, who was appointed by President Barack Obama, said those claims were being based on “a singular unsubstantiated allegation.”
“The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie,” she wrote, “and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.”
Just before the Justice Department asked the Supreme Court to weigh in, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously rejected the department’s attempt to pause Judge Xinis’s ruling.
In a sharply worded order, two judges likened Mr. Abrego Garcia’s inadvertent deportation to an act of official kidnapping.
“The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” wrote Judge Stephanie D. Thacker, who was appointed by Mr. Obama. “The government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”
Judge Thacker wrote that Judge Xinis’s order “requires only that the United States government exercise the authority and control it must have retained over the detainees it is temporarily housing in El Salvador,” adding that “requiring that the government effectuate and facilitate Abrego Garcia’s return is not a novel order.”
Judge Robert B. King, who was appointed by President Bill Clinton, joined Judge Thacker’s opinion.
A third member of the panel, Judge J. Harvie Wilkinson III, issued a concurring opinion agreeing that no stay was warranted but stopping short of the majority’s position that Judge Xinis had the power to tell the government to demand Mr. Abrego Garcia’s return.
“There is no question that the government screwed up here,” Judge Wilkinson wrote. But he drew a distinction.
“It is fair to read the district court’s order as one requiring that the government facilitate Abrego Garcia’s release, rather than demand it,” wrote Judge Wilkinson, who was appointed by President Ronald Reagan. “The former seems within the trial court’s lawful powers in this circumstance; the latter would be an intrusion on core executive powers that goes too far.”
Mr. Sauer said Judge Xinis’s order was one in a series of rulings from courts exceeding their constitutional authority.
“It is the latest in a litany of injunctions or temporary restraining orders from the same handful of district courts that demand immediate or near-immediate compliance, on absurdly short deadlines,” he wrote.
In a separate emergency application, the administration has asked the justices to weigh in on its effort to use the Alien Enemies Act of 1798 to deport Venezuelan migrants to the prison in El Salvador. The court has not yet acted on that application.
In filings to the court, the administration claimed that the migrants are members of Tren de Aragua, a violent street gang rooted in Venezuela, and that their removals are allowed under the act, which grants the president authority to detain or deport citizens of enemy nations.
The president may invoke the law in times of “declared war” or when a foreign government invades the United States. On March 14, President Trump signed a proclamation that targeted members of Tren de Aragua, claiming that there was an “invasion” and a “predatory incursion” underway as he invoked the wartime law.
In the proclamation, Mr. Trump claimed that the gang was “undertaking hostile actions” against the United States “at the direction, clandestine or otherwise” of the Venezuelan government.
Alan Feuer and Abbie VanSickle contributed reporting.
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