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“The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process.”

That’s not just my opinion—it’s from a unanimous ruling of a federal appeals court. This week, I’m walking you through one of the most consequential legal cases, now pending before the Supreme Court: Kilmar Armando Abrego Garcia v. United States (which issued an administrative stay moments ago).

This case is about more than one man—it’s about whether our government is bound by the rule of law, and whether the courts can still hold this administration accountable when it isn’t.

Take a listen. Stay engaged. Thank you.

–Andrew

TRANSCRIPT

So I know a lot of you are thinking there was some good news this past weekend, because we saw millions—truly, millions—of people protesting various aspects of what the administration has been doing. We also had the vote for the State Supreme Court in Wisconsin. There were also the votes in Florida that showed that sort of Trump’s prowess seemed to be severely cut, in terms of the turnout.

In connection with the vote in Wisconsin, it also showed that in spite of millions and millions of dollars being spent by Elon Musk, it was not sufficient to overcome the will of the people there.

But with all of that, I would say that it’s really important to keep your eye on the ball.

There is a case that I want to talk about. It is by Kilmar Armando Abrigo Garcia—my apologies if I am mispronouncing his name. I’m going to refer to that as Abrigo Garcia. Why is this a case that’s important and you need to keep your eyes on it?

It is now in the hands of the Supreme Court of the United States. There was a decision just the other day at the district court level. There was a decision by the Fourth Circuit—Udanis decision today in the Fourth Circuit Court of Appeals—and it is already in the Supreme Court.

Why is this such an important case? Let me read to you what the district court said about Mr. Abrigo Garcia:

In 2019, an immigration judge, under the authority delegated by the United States Attorney General and pursuant to powers vested by Congress, granted Kilmar Armando Abrigo Garcia withholding of removal. That is, saying that he cannot be removed from this country, thereby protecting him from return to his native country, El Salvador.

Such protection bars the United States from sending a non-citizen to a country where, more likely than not, he would face persecution that risks his life or freedom.

So that’s a long legal way of saying: in 2019, an immigration judge said that he cannot be removed to El Salvador. So that’s a court order.

If the government wanted to change that, they would have had to go back to court—which they could do—and make a showing as to why that judgment should be changed.

That is not what happened.

According to the district judge—six years later, without notice, legal justification, or due process—officers from the United States Immigration and Customs Enforcement (ICE), a sub-agency of the Department of Homeland Security, put him on a plane bound for the terrorism confinement center in El Salvador.

Neither the United States nor El Salvador have told anyone why he was returned to the very country to which he cannot return, or why he is detained at that prison.

Let me read to you now from the Court of Appeals. The District Court ruled in favor of Mr. Abrigo Garcia and said that he’s entitled to due process—that the government violated his due process rights—and that if he was going to be removed from this country, he was entitled to a hearing to understand why he was being removed. Just as much as anybody here is entitled to that kind of due process—a pre-deprivation hearing—so that he could challenge why it is that he was being picked up and moved.

And the judge, as some of you may have heard, said that he is to be returned to this country from El Salvador.

That led the White House to issue a somewhat snarky comment, saying, “I suggest that the district court take that up with the president of El Salvador,” as if the issue were that the judge was ordering El Salvador to do something. She wasn’t. She was ordering the United States to bring him back.

And the way I look at that is: if we could get him there, we can get him back. It’s not like they just put him on a plane to some place and he’s in the wild, you know, not in the control of anybody. He is actually in a prison, and that prison is being paid to keep him there by the United States, pursuant to an agreement by the United States with the El Salvador government.

So if they can get him there, and they have that agreement, the court clearly has its authority to say, “Bring him back,” because it’s an order to the United States and to United States authorities.

If they want to have a hearing to say they have no power to bring him back—so be it. Let them go to a hearing on that. But the evidence seems very compelling that they do have that power.

So once again, the issue is not ordering El Salvador to do anything. It’s ordering the United States to do something, because the person is in their possession, custody, or control.

So this was appealed by the government to the Fourth Circuit. That court issued an opinion today—and it’s a unanimous ruling from the Fourth Circuit.

The Fourth Circuit is not a circuit that’s known for being particularly liberal. Certainly right after 9/11, there were lots and lots of terrorism cases that were brought in the Fourth Circuit, and it was considered a very favorable circuit for the government.

And this was a unanimous, three-judge panel decision.

I am going to read to you the first paragraph of the opinion by Circuit Judge Thacker. It gives you, I think, the full flavor of why I think this is so important, and why I think we all need to pay attention:

“The panel unanimously agrees that the district court’s order requiring the government to facilitate and effectuate the return of Plaintiff Kilmar Armando Abrigo Garcia to the United States by no later than 11:59 PM on Monday, April 7, should not be stayed. The government’s motion to stay is therefore denied. I write to explain my view.

The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”

Let me just repeat that:

“The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”

That conclusion is something that is joined in by Circuit Judge King, and then there’s a separate concurrence by the third judge.

Let me read to you now the conclusion, where the court says that it finds the case is straightforward. As Judge Wilkinson notes, the government “screwed up.” The government has admitted as much, and now it must clean up the mess it has made. The government’s motion for a temporary administrative stay and a stay pending appeal of the district court’s injunction is denied.

One of the things that the court noted in a footnote—and some of you may have followed—is that the attorney who stood up on this case in the district court, an attorney who was only recently put into his position and was the subject of much acclaim by the Trump administration (and they touted his expertise and said he was the right person for the job), after the district court court appearance, he was removed from the case. And more than that, he was put on temporary leave with pay at the Justice Department.

So—it is the attorney who stood up on the case, and the court makes note of that.

What the court notes is that at the oral argument, the attorney was asked a lot of questions: How could you rely on the prior order of the immigration judge? And the attorney says, well, of course not, because that was an order that the person had to stay here. And that is not a basis to remove somebody—it’s a basis to keep the person here.

And the attorney had no legal argument for why he could be removed without due process. Here’s a quote from that attorney:

“There’s no dispute that the order of removal could not be used to send Mr. Abrigo Garcia to El Salvador.”

So that’s one of the things. He was asked other questions—about the facts and on the law—and the fact that he was removed did not escape the attention of the circuit judges who issued this ruling today, affirming the district court that he be brought back to this country.

And the court said, of note:

“In response to the candid responses by the government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for the lack of, quote, ‘zealous advocacy.’”

And here I think it’s really important to note that every attorney, of course, has to zealously advocate for their client—but there are limits to zealous advocacy. And one is that you have to remember: you’re not a hired gun. You’re retained, and you are, first and foremost, an officer of the court. That means you have a duty of candor to the court—to not misrepresent the facts, and to not make arguments that are in bad faith.

And so here, the court notes just that. The court says:

“The duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations—and the duty to uphold the rule of law—particularly on the part of a government attorney.”

And then cites the United States Department of Justice homepage.

That’s the irony of all ironies—where the DOJ homepage states:

“Our employees adhere to the highest standards of ethical behavior, mindful that as public servants, we must work to earn the trust of and inspire confidence in the public we serve.”

That is on the homepage of the Department of Justice. Presumably, that won’t be whitewashed and taken off the homepage—but we shall see.

And so here, once again, we are seeing the Department take adverse employment action against people for adhering in their views to the rule of law.

This is reminiscent of another case—Judge Ho—who had very similar things to say in connection with the resignation of numerous members of the Southern District of New York U.S. Attorney’s Office and the Public Integrity Section in Washington, rather than go along with what the government was proposing to do in the Eric Adams case, which was dismiss the case without prejudice.

Here you’re seeing the same thing: someone who has been a very loyal, conservative member of the Trump administration, who just articulated the facts as he knew them and the law as he saw it—being removed from the case.

That itself is shocking. It sends an incredible message to the court in terms of what is going on—but more than that, the big picture is not just what is happening within the Department of Justice.

It’s the description from the district court—and now the Court of Appeals—about snatching somebody from the United States without, according to both courts, any legal basis, and then having the temerity—after removing somebody without any legal basis—to say, “Our hands are tied, we can’t do anything.”

Which is, you know, as the court found, is simply not true.

And this is now in the Supreme Court of the United States. I would say this is kind of for the whole ball of wax.

If there are not five justices who are going to support the district court and the Court of Appeals here, I wouldn’t be surprised if there is a short—what’s called—administrative stay, so that the parties can brief this and be heard.

But this is one where there’s simply no basis to have removed this person—in my view and in the view of now two separate courts.

There’s no reason not to have given a hearing. And there’s been no showing by the government that they don’t have any ability to facilitate his coming back to this country.

For God’s sake—they were able to house him there and put him there pursuant to an agreement. So whatever that agreement is—and the coercive measures and the negotiation to have El Salvador house these people—obviously those same measures can be used to facilitate his return.

If Cristina can have a photo op in front of the prison—clearly there is some ability to control what is going on there.

And I think, as she said, that the prison there is one of the tools that the administration has at its disposal. So all of that is cited by the district court and the Court of Appeals as to why they have the power and the ability—and have made no showing, let’s put it that way—as to their being unable to bring this person back.

So—keep your eyes out for this case in the Supreme Court.

As I said, this is absolutely critical as to what could happen to all of us—not just to Mr. Abrigo Garcia—in terms of abiding by the rule of law, and not simply picking people up in the middle of the night and hauling them off to a foreign prison with no due process.

It is, in my view—it’s not who we are, it’s not who we should be—and it remains to be seen whether the Supreme Court is going to vindicate what Mr. Abrigo Garcia is saying, and what two separate courts have now found.

So stay tuned.