Immigration Developments

Because writing daily posts about the authoritarian takeover of America is depressing, I have been hoping to use Fridays for more lighthearted topics. Unfortunately, reality has been intruding on that desire, as it has today. There have been important developments involving the subjects of earlier posts that I think are important enough to put off my plans for a less serious post. Fortunately, not all of those developments are necessarily bad.

I'll start with the good news. Yesterday, Maryland Senator Chris Van Hollen was able to meet with Kilmar Armando Abrego Garcia, the Maryland father who was wrongly transferred to El Salvador's notorious Terrorism Confinement Center (CECOT). We now know that Abrego Garcia is alive and appears to be in good health. The photos of the meeting were staged by the Salvadoran government and, as such, things likely look much better than reality. Van Hollen said that he would have a fuller report after he returned to the United States. El Salvador's President, Nayib Bukele, later mocked the meeting as "sipping margaritas" and implied that Abrego Garcia would not be released from prison.

There was another important development involving Abrego Garcia yesterday. As those following the case will be aware, District Court Judge Paula Xinis earlier ruled that the government must return Abrego Garcia to the United States. Her ruling was appealed to the U.S. Supreme Court, resulting in a 9-0 ruling that the government must "facilitate" his return. Since then, the government has argued that "facilitate" does not require anything more than allowing Abrego Garcia into the U.S. if he arrives at a U.S. port of entry. Xinis has disputed this interpretation and demanded that the government take active measures to free Abrego Garcia. Despite Xinis's repeated demands, government lawyers have failed to produce any evidence documenting actions that have been taken to facilitate Abrego Garcia's return. An exasperated Xinis finally ordered expedited discovery "specifically to determine whether you are fighting the court order, my court orders, whether you intend to abide by the court orders." The government appealed this ruling to the Fourth District Court of Appeals, where a three-judge panel unanimously ruled in favor of Judge Xinis.

The Court of Appeals decision was written by Judge James Harvie Wilkinson III. To understand the importance of his decision, it is necessary to know a little about him. Wilkinson was appointed by former President Ronald Reagan. He is a quite conservative justice who is closely aligned with the Federalist Society. If there were ever a judge that you would think would be sympathetic to cult leader, convicted felon, and failed President Donald Trump, it would be Wilkinson. That was not the case, however. The decision is not long and you really should read the entire thing yourself. Wilkinson gets right to the point by saying "we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision." He then goes on to say:

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government 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. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

The ruling then turns to verbiage that could almost have been lifted from one of my earlier blog posts except that it goes even further than I have so far:

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? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies?

Wilkinson then trained his pen on the current friction between the executive and judiciary branches and the Trump administration's apparent willingness to ignore judicial rulings. Wilkinson says that this may lead to short-term benefits for Trump, but in the long term, history will not be kind:

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

Unless the Trump administration can manage to get the Supreme Court to overturn this ruling — an unlikely prospect — Trump officials will soon be required to appear before Judge Xinis, where they will be in for an uncomfortable experience. What is probably more concerning to the Trump administration is that the logic of much of what Wilkinson writes applies more broadly to the rest of those removed to CECOT.

Speaking of the other men being held at CECOT, there has also been movement in a separate case involving them. As some may remember, on the day of the first flights carrying detainees to El Salvador, lawyers for some of the men had gone to court in an attempt to stop the flights. Judge James E. Boasberg, Chief Judge of the District Court of the District of Columbia, issued an order from the bench halting takeoffs and requiring any flights in the air to return. The government ignored the verbal order, waiting for a written order instead. By the time the written order arrived, the aircraft had landed in El Salvador (or at least the government contends). Boasberg has been considering contempt charges against the government and finally decided that there is probable cause for such charges. He has now provided the government an opportunity to bail itself out of its predicament. If it fails to do so, Boasberg will begin contempt proceedings. The administration officials responsible for the flights may well find themselves facing criminal charges.

The dangers of which I and, now, the Court of Appeals have been warning were made even more apparent by an arrest Wednesday in Florida. Juan Carlos Lopez-Gomez, a 20-year-old U.S. citizen born in Georgia, was arrested along with two other men under a new Florida law making it a misdemeanor for unauthorized residents to enter Florida. A temporary restraining order that ends today had been issued to prevent enforcement of the law. There are conflicting stories about whether Lopez-Gomez identified himself as a U.S. citizen. Regardless, Florida law enforcement clearly believed Lopez-Gomez was not a citizen. While the charge against him was dropped, authorities had already contacted Immigration and Customs Enforcement (ICE), who issued a 48-hour hold. Despite a court appearance in which a judge was shown Lopez-Gomez's birth certificate and Social Security card, the judge said that she had no power to release him while the ICE detainer was in effect. Eventually, ICE agents showed up, were satisfied that Lopez-Gomez is a citizen, and released him. But, imagine a situation in which a detainee was not able to quickly provide proof of citizenship? Given that the Trump administration does not believe undocumented immigrants deserve judicial review, someone in Lopez-Gomez's situation could easily find themselves on a plane to El Salvador. Hopefully, lawyers are lining up at Lopez-Gomez's door with offers to represent him in a lawsuit against the state of Florida for arresting him under a law that was under a TRO and wrongly detaining him. He should make a few dollars for his trouble.