The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Kilmar Abrego Garcia Back in the United States
The Trump Administration returned the illegally deported migrant from imprisonment in El Salvador after repeatedly claiming they could not do so.
Salvadoran immigrant Kilmar Abrego Garcia—illegally deported by the Trump Administration to imprisonment in El Salvador without any due process—is now back in the US. After the Supreme Court ruled that the Administration had to "facilitate" his return, the administration repeatedly insisted they had no power to do so, and otherwise verged on defying court orders. But as Trump admitted, in reality the administration could have secured his return any time they wanted to. Salvadoran President Nayeb Bukele was keeping Abrego Garcia in prison only because of arrangement with Trump, under which the US paid him to detain Garcia and hundreds of other migrants deported without due process, in violation of the Fifth Amendment.
The Venezuelans deported under the Alien Enemies Act are also victims of an illegal invocation of that law (see my recent amicus brief on that subject); most have never been convicted of any crime, and many (possibly a majority) entered the US legally.
As the Abrego Garcia case shows, Trump could easily return these people to the United States simply by asking the Salvadoran government to release them, and making clear he means it. Courts should tolerate no more excuses on that subject!
The outcome of this case also shows that the administration is susceptible to judicial and political pressure, even in the immigration field. The lawyers, activists, and others who pursued this matter—initially against seemingly insurmountable odds—deserve great credit. The rest of us should learn from their success, and build on it.
ABC reports that Abrego Garcia will now face charges for supposed involvement in a scheme to illegally transport "thousands" of undocumented migrants. We shall see whether those charges have any merit. Perhaps I am too cynical. But I suspect that if the Administration actually had strong evidence of extensive illegal activity by Abrego Garcia, they would have revealed it a long time ago, rather than keep on suffering legal and PR setbacks. The prosecution may be a face-saving maneuver. We shall see when it gets to court. At any rate, even a possibly questionable prosecution in a court with proper due process is far better than deportation to imprisonment with no due process at all.
Elsewhere, I have argued that the sort of activity Abrego Garcia is charged with should not be a crime at all, because most of our immigration restrictions are unconstitutional and deeply unjust. But even those who differ with me on these points have reason to oppose deportation without due process, especially when it is deportation to imprisonment, of the kind inflicted on Abrego Garcia and hundreds of others.
If left unchecked, such policies can become a tool for deporting and imprisoning anyone the administration chooses to target, including even legal immigrants and US citizens. As prominent conservative Fourth Circuit Judge J. Harvie Wilkinson pointed out in his concurring opinion in the Abrego Garcia case:
The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.
The best way to decisively close that loophole is for courts—and the rest of us—to compel the return of all those illegally deported without due process, and ensure that such a thing can never happen again.
UPDATE: ABC reports that a high-ranking prosecutor in the Nashville, Tennnessee US attorney's office, where Abrego Garcia will be tried, recently resigned because he believes the indictment against Abrego Garcia was brought for political reasons. That doesn't definitively prove the charges are bogus. But it should heighten our suspicions.
