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PaperclipPerfector  1mo ago (text post)   33598 thread views

Culture War Roundup for the week of March 31, 2025

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More news in immigration yesterday. There's an Atlantic article about it. The docket is Abrego Garcia v. Noem. The facts I'm recounting come from the declaration of Robert L. Cerna, Acting Field Office Director of the ICE Harlingen Field Office. This declaration is attached as Exhibit C to the government's response in opposition to the TRO (ECF #11).

6. On March 15, 2025, two planes carrying aliens being removed under the Alien Enemies Act (“AEA”) and one carrying aliens with Title 8 removal orders departed the United States for El Salvador. Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed. This removal was an error.

7. On March 29, 2019, the Department of Homeland Security (DHS) served Abrego- Garcia with a Notice to Appear, charging him as inadmissible pursuant to Section 1182(a)(6)(A)(i) of Title 8 of the United States Code, “as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the [Secretary of Homeland Security].”

...

9. On October 10, 2019, an IJ ordered Abrego-Garcia’s removal from the United States but granted withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A). This grant of protection prohibited his removal to El Salvador.

10 . Following this grant of withholding of removal, Abrego-Garcia was released from ICE custody.

11. On March 12, 2025, ICE Homeland Security Investigations arrested Abrego- Garcia due to his prominent role in MS-13. Over the next two days, Abrego-Garcia was transferred to the staging area for the removal flights discussed in Paragraph 6.

12. The operation that led to Abrego-Garcia’s removal to El Salvador was designed to only include individuals with no impediments to removal. Generally, individuals were not placed on the manifest until they were cleared for removal.

13. ICE was aware of this grant of withholding of removal at the time Abrego- Garcia’s removal from the United States. Reference was made to this status on internal forms.

14. Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador. Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight. The manifest did not indicate that Abrego-Garcia should not be removed.

15. Through administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13.

That last line is, frankly, insane to me given the circumstances. "Yea we knew at the time we deported the guy to El Salvador that it was illegal for us to do it, but it was in good faith!" What is the government's response to having illegally deported someone? Too bad! The government makes a few arguments but here I want to zoom in on a particular one: redressability. Ordinarily in order for a U.S. Federal court to have jurisdiction to hear a case the Plaintiff (that would be Abrego-Garcia, his wife, and his 5 year old son in this case) bears the burden of establishing that an order of the court would redress their claimed injury. This cannot be met here, according to the government, in part because they no longer have custody of Abrego-Garcia and so there is no order the Court can issue as to the United States Government that will reddress their injury. The appropriate entity to be enjoined is the government of El Salvador, over which a U.S. federal court obviously has no jurisdiction.

As best I can tell nothing in the redressability argument turns on any facts about his legal status in the United States. The argument is strictly about who presently has custody of the defendant in question. I do not see any reason why the government could not make an identical argument if an "administrative error" meant they deported a United States citizen.

I had to read several articles about this to really understand

  • he illegally entered the US
  • he applied for asylum, citing danger if he returned to El Salvador
  • a judge denied his asylum request
  • but a judge did sympathize and say he can't be deported back to El Salvador
  • he's still an illegal alien!
  • presumably the US tried to find another place to send him, but couldn't
  • so he remained in the US
  • until they accidentally deported him to El Salvador for thinking he was part of a gang

Wait, so he wasn't granted asylum, just a stay of deportation to El Salvador specifically?

If I'm understanding right:

  • He applied for asylum from El Salvador in 2019. The immigration judge denied his request for asylum, but granted him "withholding of removal," which specifically prohibited his deportation to El Salvador due to the risk of persecution there
  • ICE did not appeal this decision, and he was released.
  • The withholding of removal meant he was still removable from the US, just specifically not to El Salvador. The government could have legally deported him to any other country willing to accept him without violating the court order.
  • The "administrative error" was that ICE deported him specifically to El Salvador in March 2025 despite being aware of his protection from removal to that country, violating the exact limitation imposed by the court.
  • And now the Trump admin is saying "yeah we did the thing we were specifically ordered by the court not to do, but now it's done and even though we could fix it we won't and you can't make us".
  • And the Trump admin is probably correct on the "and you can't make us" part, because in the end a court order is a piece of paper and someone still has to enforce said court order.
  • This doesn't actually set any legal precedent that this method of deportation is ok though, it just adds to the growing pile of divergences between what the law says agencies must do and how government agencies actually operate in practice.

He applied for asylum from El Salvador in 2019. The immigration judge denied his request for asylum, but granted him "withholding of removal," which specifically prohibited his deportation to El Salvador due to the risk of persecution there

This seems like a pretty nonsensical status that I can't really explain. The guy is from El Salvador, which is then about the only country that could be reasonably expected to take him back for no reason (others would also expect dollars, most likely). I get that there are real concerns about it's criminal justice practices these days (which are maybe better than it's previous murder practices), but I can't really explain this ruling other than an activist judge recognizing that he doesn't actually qualify for asylum but granting him the closest functional equivalent: Surely asylum would apply if he was actually at risk of persecution (on the basis of protected statuses) and applied truthfully for it in the US. Or maybe I'm missing something?

To that I'll add my confusion about "we can't just send him back to a country with a 'shady' human rights record!" arguments. If his argument for being allowed to stay in the US was "I'm being threatened by gangs", isn't that problem largely taken care of by now?

That is an excellent point.

Though he's being held in prison in El Salvador? Because the US said so? And he has no rights as an El Salvsdor citizen himself to demand his release?

Though he's being held in prison in El Salvador? Because the US said so?

Oh god, now I can't get the image out of my head, where he's getting locked up, and then hears a familiar voice from inside the cell saying "welly, welly, well... look who's here!".

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