Due Process and the Abrego Garcia Case

• A 2019 court order expressly prohibits Abrego Garcia’s removal to El Salvador because he faced a “clear probability of future persecution” there and had “demonstrated that El Salvadoran authorities were and would be unable or unwilling to protect him.”
• In March, 2025 without any notice or a warrant, ICE agents seized him, placed him on a plane, and transported him to an El Salvadoran prison (the “Center for Terrorism Confinement,” (CECOT)).
• Abrego Garcia has not been charged with any crime. No warrants have been issued against him or his property. The government has asserted – in various court papers and, yesterday, at a presidential news conference and a televised meeting in the Oval Office – that he is a member of MS-13, a designated terrorist organization. That may be true; the government, however, has provided no evidence, to a grand jury or to a magistrate or to any third party, that it is true. The President has told us, though, that it is true – but he is, remember, the Chief Prosecutor.
• The US district court in Maryland ordered the government to “facilitate and effectuate” Abrego Garcia’s return to the United States, and gave the government a deadline for his return.  The 4th Circuit affirmed, and refused to stay the district court’s order.
• The Supreme Court affirmed the order last week, with a qualification.  The Court declared – with no dissents – that Abrego Garcia’s removal was “illegal,” that the government “acknowledged” that his removal was illegal, and that the district court’s order “remains in effect [and] 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 qualification:

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 district court immediately revised its order, dropping the reference to “effectuating” Abrego Garcia’s return. The order now requires the government to submit information regarding

“(1) the current physical location and custodial status of Abrego Garcia;

 (2) what steps, if any, Defendants have taken to facilitate Abrego Garcia’s immediate return to the United States; and

(3) what additional steps Defendants will take, and when, to facilitate his return.”