A federal appeals court on Thursday excoriated the Trump administration for its conduct in the case of Kilmar Abrego Garcia, the man who was wrongly deported from Maryland to a notorious prison in El Salvador.
The administration is “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” wrote Judge J. Harvie Wilkinson in an opinion for a panel of the 4th Circuit Court of Appeals.
“Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done,” he wrote. “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Wilkinson, a Reagan appointee who has been on the bench for 41 years, is one of the nation’s most prominent conservative appellate judges. His seven-page opinion is the latest — and most scorching — judicial rebuke of the Trump administration’s aggressive moves to sidestep court orders in high-profile immigration cases.
Earlier this week, U.S. District Judge James Boasberg found probable cause to hold administration officials in contempt for defying an order to halt deportations of people deemed “alien enemies.” And U.S. District Judge Paula Xinis scolded the administration for having done “nothing” to comply with her order to facilitate Abrego Garcia’s release from El Salvador.
Wilkinson and the two other judges on the 4th Circuit panel rejected the administration’s appeal of an April 10 order from Xinis directing the administration to “take all available steps” to facilitate Abrego Garcia’s return to the U.S. “as soon as possible.”
Wilkinson zeroed in on the Justice Department’s admission that it had “mistakenly” deported Abrego Garcia.
“Why then should it not make what was wrong, right?” Wilkinson wrote.
Abrego Garcia was detained and quickly flown to El Salvador last month despite a 2019 court order that barred the government from deporting him there because of the risk that he could be targeted by a local gang. The Supreme Court said his deportation was “illegal” in a decision upholding Xinis’ directive requiring the U.S. to facilitate his release.
But the administration has apparently taken no concrete steps to bring him back.
Instead, Trump administration officials have claimed they have no power to do so now that he is under the jurisdiction of El Salvador. On Tuesday, Xinis ordered an “intense” two-week inquiry into the administration’s defiance.
Wilkinson warned of a dangerously slippery slope on the horizon. “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?” he wrote.
“And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies?”
And he chided the administration broadly for its contemptuous attitude toward the judiciary, noting its calls for the impeachment of judges and “exhortations to disregard” court orders.
In this environment, he wrote, the executive and judiciary branches are coming “too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around.”
