The Week AheadApril 6, 2025On Saturday, Max Flugrath at Fair Fight, the pro-voting organization started by Stacey Abrams, tweeted: “What do @CoryBooker's 25-hour protest speech, wins in Wisconsin and Louisiana, and 1,100+ rallies today have in common? They’re all part of a growing movement to stop Trump & Elon Musk's attack on democracy.” With protests across the country and marchers in every state, there is no doubt that many American citizens have awakened to what is going on with this administration. It’s no surprise that Trump demonized the idea of people being “woke” almost a decade ago. Paying attention to what’s going on is essential to holding onto democracy. It’s time to wear that label proudly again, and so many Americans did yesterday. A lot of you shared your comments and pictures from Saturday’s marches and rallies. One of my favorites was this one from a 92-year-old reader (in the green sweater) who sent a clip of her interview on NBC. I’ve enjoyed looking at all of them!
And from Seattle, part of our family of choice took the kids along to protest.
I have no doubt there will be more. Despite how invigorating the weekend was, we still face serious issues in the week ahead. I apologize in advance for the long post, but I hope you’ll appreciate all of the information that will be important for this week that I’ve packed into it. The big question: having knocked the Congress into a supine position, at least temporarily, will the Trump administration try to make good on its threat to kick over the judiciary too? Or will it continue to obey, or at least go through the motions of obeying, court orders? It all comes to a head this week as Trump tries to stay true to his promise of mass deportations, despite multiple cases of mistakes and arrests of students, not the hardened criminals he promised to remove from our communities. Will the government return a Maryland man improperly deported to El Salvador? A federal judge gave them until Monday to do so. The Department asked Judge Paula Xinis to pause her order, but she declined to do so. Sunday morning, she issued a ruling that confirmed her judgment from Friday and castigated the Justice Department for its conduct. Tonight, I want to spend our time together discussing her written opinion in detail, because it is by turns shocking (yes, that’s still possible) and informative, and it’s important for us to understand the specifics.
The Judge summarized the facts of the case: “In 2019, an immigration judge … granted Plaintiff Kilmar Armando Abrego Garcia (“Abrego Garcia”) withholding of removal, thereby protecting him from return to his native country, El Salvador … Such protection bars the United States from sending a noncitizen to a country where, more likely than not, he would face persecution that risks his “life or freedom.” … Six years later, without notice, legal justification, or due process, officers from U.S. Immigration and Customs Enforcement (“ICE”), a subagency of the Department of Homeland Security (“DHS”), put him on a plane bound for the Terrorism Confinement Center (“CECOT”) 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 CECOT.” In her order, Judge Xinis remarked on an exchange during the hearing, where the lawyer representing the Justice Department was forced to concede, “We have nothing to say on the merits. We concede he should not have been removed to El Salvador.” When the Judge asked what the basis for holding Abrego Gracia in the CECOT was, he responded, “I don’t know. That information has not been given to me. I don’t know.” In the hearing, the government’s position was:
The Judge was not persuaded and ordered the government to return Abrego Garcia to the United States. She explained the background of the case, which involved Abrego Garcia’s family business in El Salvador, which she described as “a small and successful pupuseria,” a shop where a popular El Salvadoran dish consisting of thick corn tortillas with different kinds of fillings like cheese, beans, and pork is sold. The family business was extorted, including by death threats, for many years by a notorious gang, Barrio 18. The Judge writes, “The gang used Abrego Garcia as a pawn in its extortion, demanding that his mother give Abrego Garcia over to the gang or he and others in their family would be killed. Attempting to escape the gang’s reach, the family moved three times without success. To protect Abrego Garcia, they ultimately sent him to the United States to live with his older brother, a U.S. citizen, in Maryland.” Abrego Garcia was working as a day laborer when he was arrested and turned over to ICE. DHS asked the immigration judge to keep him in detention after he conceded he was deportable but asked for asylum. Judge Xinis explained that the request was based on alleged gang membership, but “DHS relied principally on a singular unsubstantiated allegation that Abrego Garcia was a member of MS-13.5.” In a footnote, she explained that “The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.” It’s important to understand that when the government refers to Abrego Garcia as a violent gang member, this is the quality of the evidence that backs that claim up. You may recall that when we discussed this case last week, I wrote that, “Press Secretary Karoline Leavitt claimed today that there was ‘a lot of evidence’ Abrego Garcia was a convicted member of the gang MS-13, saying that ‘I saw it this morning.’”
On October 10, 2019—during the Trump administration—Abrego Garcia was granted “withholding of removal to El Salvador.” That doesn’t forgive the fact that he was here illegally and was subject to deportation, but rather, an order of that nature reflects the higher principle that we are not a country that returns people to other countries where they are going to face persecution. The immigration judge granted the protection because the Barrio 18 gang had been “targeting him and threatening him with death because of his family’s pupusa business.” DHS never appealed that decision and the order became final. The court notes that Abrego Garcia remained in Maryland with his wife and three children for the next six years and “complied fully with all directives from ICE, including annual check-ins, and has never been charged with or convicted of any crime.” In other words, the Trump administration lied about who he is. He may not be here legally, but he’s not a violent criminal, and U.S. law, which went unchallenged by the first Trump administration, protected him from being deported. There is no legal, or for that matter, factual or moral, justification for what the government did. Abrego Garcia was not, as we have previously noted, deported under the Alien Enemies Act. He was on the third planeload of people the Trump administration sent to El Salvador, claiming they were validly subject to deportation under what is known as a Title 8 removal order. The Judge explained his fate: After being taken off of the plane in El Salvador, he was stripped, shackled, shaved, and marched into a prison with “some of the most inhumane and squalid conditions known in any carceral system. Since then, no one has heard from Abrego Garcia.” If it can happen to Abrego Garcia, it can happen to any of us. He saw no judge before he was deported, had no opportunity to plead his case that what was happening to him wasn’t permitted. As the Judge noted, El Salvador’s President, Nayib Bukele, has “publicly touted,” his agreement with the United States is to “take in only convicted criminals” and that includes U.S. citizens. Interestingly, Bukele noted that he had returned seven female detainees because the prison is only for men. No word on why they took someone (and likely far more than one person), who was not a “convicted criminal.” There is no doubt that many, if not most, of the people the government has sent to El Salvador are “deportable,” but that’s not the same as sending them to a terror prison for the rest of their lives. It still shocks me that detail hasn’t garnered more attention. Whatever the fate of other prisoners, the Judge reached the conclusion that “Abrego Garcia’s case is categorically different—there were no legal grounds whatsoever for his arrest, detention, or removal. Nor does any evidence suggest that Abrego Garcia is being held in CECOT at the behest of Salvadoran authorities to answer for crimes in that country. Rather, his detention appears wholly lawless.” Wholly lawless just about sums up this administration so far. You would expect the government, if this were a normal administration, which it most assuredly isn’t, to confess error and voluntarily return Abrego Garcia. But that has not been the case. The Judge rejected the government’s argument that it could not retrieve Abrego Garcia from prison in El Salvador, noting “Defendants can and do return wrongfully removed migrants as a matter of course.” And she noted that based on DHS Secretary Noem’s statement that the terror prison was one of the “tools” in the government’s toolkit for dealing with immigration detainees, “record reflects that Defendants have ‘outsource[d] part of the [United States’] prison system,” so the government still has power over their fate. “This is not about Defendants’ inability to return Abrego Garcia, but their lack of desire,” the Judge concluded.
Abrego Garcia’s attorney asked the court to issue an injunction that would return him to the U.S. and prevent the government from deporting him while his case was being adjudicated. By now, we are familiar with the requirements for obtaining an injunction, which include establishing that the plaintiff will be “irreparably injured” if the injunction isn’t granted. Relying on earlier case law, the Judge writes, “Obviously, ‘the risk of torture, beatings, and even death clearly and unequivocally supports a finding of irreparable harm.’” The Judge explains at length, “the risk of harm shocks the conscience. Defendants have forcibly put him in a facility that intentionally mixes rival gang members without any regard for protecting the detainees from ‘harm at the hands of the gangs.’ Even worse, Defendants have claimed—without any evidence—that Abrego Garcia is a member of MS-13 and then housed him among the chief rival gang, Barrio 18. Not to mention that Barrio 18 is the very gang whose years’ long persecution of Abrego Garcia resulted in his withholding from removal to El Salvador. To be sure, Abrego Garcia will suffer irreparably were he not accorded his requested relief.” That should be game over. The Judge has ordered the plaintiff’s return. There should be no doubt that the government will comply, but of course, there is. This is the sort of temporary injunction that is not usually appealable. But the Judge permitted the government to docket an appeal to the Fourth Circuit Court of Appeals, deeming it to be more like a preliminary injunction from which an appeal can be taken, and the government asked the court for an emergency stay on Saturday. The court gave Abrego Garcia’s lawyers until 2:00 p.m. on Sunday to respond, suggesting that the court expects to make a fast decision on the emergency stay request from the government. No word as of the time I’m writing to you as to whether that court will step in to stay the stay, which would permit the government to avoid returning Abrego Garcia, at least for the time being.
The ultimate question is, if the government is ordered to return him at some point, will they do so? Or will they try to hide behind some sort of vacuous claim that they can relinquish American detainees into the bottomless pit of an El Salvadoran hell hole, never to see the light of day again? If they can do that to Abrego Garcia, they can do that to any of us. No conviction? No problem. Just a “sorry, there’s nothing we can do about it” burning of the Constitution in action. But the legal pleadings aren’t the end of the story. Following the hearing, the Justice Department reportedly placed Erez Reuveni, the lawyer who argued the case in court, on leave. Apparently, it’s out of fashion with DOJ’s leadership for prosecutors to live up to their obligation of candor to the court. When Reuveni didn’t have answers for the Judge’s questions, he didn’t try to fudge it. He told her so. That was his duty. Punishing him for it is the epitomy of politicizing DOJ. It’s unprecedented and it’s shocking, but it seems to be going largely unnoticed. And so, DOJ succumbs to Trump 2.0, with little public fanfare. The truth is required in court. This prosecutor was disciplined for offering it. Ask any prosecutor, and if they’re being honest, they’ll tell you the DOJ lawyer did the right thing, the only thing he could do in this situation. But the rules and the ethical obligations Justice Department lawyers have don’t matter to Pam Bondi, so she disciplined the lawyer, and continues to do the bidding of the president who wants it this way. Will the government be held in contempt? As we’ve noted, Abrego Garcia’s case is separate from the ACLU’s challenge to the Trump administration’s deportation of two planeloads of men based on Trump’s invocation of the Alien Enemies Act. In a hearing Friday in that case, Judge Boasberg considered whether to hold the Trump administration in contempt. The hearing stems from the administration’s alleged failure to prevent planes from leaving or turn those already in the air around. The Judge, leaving little doubt about where he stands on the matter, said during the hearing that he believes the Trump administration “acted in bad faith” on the day of the Alien Enemies Act deportations. He noted that Trump signed the invocation under the Act the day before he made it public, which gave ICE time to round up more than 100 people for summary deportation. The Judge said that if he does end up concluding there is probable cause to find the government in contempt, he will have to answer two main questions:
In fact, the lawyer for the government seemed to lack answers to even the court’s most basic questions. As the lawyer for the ACLU, Lee Gelernt, noted, although the Judge asked all of the right questions, the government didn’t provide all of the answers. Gelernt suggested that permitting government officials to provide more sworn declarations to the court was pointless and suggested the move to either in-court testimony or depositions. The Judge said he would consider the matter and didn’t expect to make his decision before this week. A hearing on a preliminary injunction motion is scheduled for the case on Tuesday, so it seems likely we’re going to learn more about where this case stands—and the government’s response to it—this week. So far, the government has stopped short of outright refusal to follow a judge’s order. Even in the Alien Enemies Act case, they claim they complied, no matter how thin the veneer on that claim is. That could change in either of these two cases, although the Trump administration still has plenty of room to save face and follow the law. Expect to see them try to get a friendly ruling from the Supreme Court, which Attorney General Pam Bondi has previously suggested they expect. Mass deportations are a big priority, both for Trump personally—to make good on his campaign promises—and for stakeholders in this administration, like Stephen Miller, Kristi Noem, and Pam Bondi. But when politics meets the law, the law has to win, or we are a democracy in name only. We’re in this together, Joyce
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