WASHINGTON D.C. – Chief Justice John G. Roberts Jr. 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.
The order came just hours after the administration asked the court to block the trial judge’s order instructing the government to return the migrant, Kilmar Armando Abrego Garcia, 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 Mr. Abrego Garcia, to a notorious prison in El Salvador 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.”
In a response to the court, Mr. Abrego Garcia’s lawyers said their client “sits in a foreign prison solely at the behest of the United States, as the product of a Kafka-esque mistake.”
They added: “The district court’s order instructing the government to facilitate Abrego Garcia’s return is routine. It does not implicate foreign policy or even domestic immigration policy in any case.”
Mr. Sauer, the administration’s lawyer, said it did not matter that an immigration judge had previously prohibited Mr. Abrego Garcia’s deportation to El Salvador.
The Law
8 U.S.C.A. § 1227. Deportable aliens
(a) Classes of deportable aliensAny alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
(1) Inadmissible at time of entry or of adjustment of status or violates status
(A) Inadmissible aliens
Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.
(B) Present in violation of law
Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable.
(C) Violated nonimmigrant status or condition of entry
(i) Nonimmigrant status violators
Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 1258 of this title, or to comply with the conditions of any such status, is deportable.
(ii) Violators of conditions of entry
Any alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under section 1182(g) of this title is deportable.
(D) Termination of conditional permanent residence
(i) In general
Any alien with permanent resident status on a conditional basis under section 1186a of this title (relating to conditional permanent resident status for certain alien spouses and sons and daughters) or under section 1186b of this title (relating to conditional permanent resident status for certain alien entrepreneurs, spouses, and children) who has had such status terminated under such respective section is deportable.
(ii) Exception
Clause (i) shall not apply in the cases described in section 1186a(c)(4) of this title (relating to certain hardship waivers).
(E) Smuggling
(i) In general
Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable.
(ii) Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under section 1153(a)(2) of this title (including under section 112 of the Immigration Act of 1990) or benefits under section 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law...
8 U.S.C.A. § 1229a Removal proceedings
(a) Proceeding(1) In general
An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.
(2) Charges
An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 1182(a) of this title or any applicable ground of deportability under section 1227(a) of this title.
(3) Exclusive procedures
Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. Nothing in this section shall affect proceedings conducted pursuant to section 1228 of this title.
(b) Conduct of proceeding
(1) Authority of immigration judge
The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this chapter.
(2) Form of proceeding
(A) In general
The proceeding may take place--
(ii) where agreed to by the parties, in the absence of the alien,
(iii) through video conference, or
(iv) subject to subparagraph (B), through telephone conference.
(B) Consent required in certain cases
An evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved after the alien has been advised of the right to proceed in person or through video conference.
(3) Presence of alien
If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien...
An evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved after the alien has been advised of the right to proceed in person or through video conference.
(3) Presence of alien
If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien...
8 U.S.C.A. § 1329 -- Jurisdiction of district courts
The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter. It shall be the duty of the United States attorney of the proper district to prosecute every such suit when brought by the United States. Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be apprehended. No suit or proceeding for a violation of any of the provisions of this subchapter shall be settled, compromised, or discontinued without the consent of the court in which it is pending and any such settlement, compromise, or discontinuance shall be entered of record with the reasons therefor. Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers.Founded by a Harvard Law School Graduate
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