After the Supreme Court ruling in the case of Kilmar Abrego Garcia, I wrote a column disagreeing with the media coverage that claimed that the Trump Administration was ordered to return Garcia to the United States from El Salvador. The Administration mistakingly sent Garcia to a foreign prison. However, the Court only ordered that the Administration “facilitate” such a return, a term it failed to define. Now, U.S. District Judge Paula Xinis is indicating that she feels unfacilitated, but it is unclear how a court should address this curious writ of facilitation.
“I’ve gotten nothing. I’ve gotten no real response, and no real legal justification for not answering,” she continued, adding that if the administration is not going to answer her questions “then justify why. That’s what we do in this house.”
There is nothing worse than a feeling of being unfacilitated, but how does the court measure good faith facilitation?
Garcia is an El Salvadorian citizen in an El Salvadorian prison. The refusal of El Salvador to send the accused MS-13 gang member back effectively ends the question on any return.
Many of us suspect that El Salvador would send back Garcia if asked, but how can a court measure the effort of an Administration in communications with a foreign country?
Judge Xinis is suggesting that she will be holding someone in contempt. However, this is a discussion occurring at the highest level. Would a formal request be enough?
Is Judge Xinis suggesting that the court can require punitive or coercive measures against a foreign country to facilitate a change in its position?
The fact is that a unanimous decision of the Court is not hard when no one can say conclusively what the order means. If Judge Xinis is going to move ahead with new orders, it will find its way back to the Supreme Court.
The Court clearly (and correctly) held that Garcia deserves due process and that this removal was a mistake. As I have previously stated, the Administration should have brought him back for proper deportation. I still believe that. However, the Court also held that the President’s Article II authority over foreign policy has to weigh heavily in such questions.
As the court goes down this road, it can quickly get bogged down in subjective judgments on what constitutes facilitation. That is the can kicked down the road by the Supreme Court and it is now likely to come rattling back to the justices.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
The Actual Point of the Deportations
Getting in the record books is a secondary concern to reducing the actual number of illegal immigrants in the country.
By: W. James Antle III ~ Apr 16, 2025
https://www.theamericanconservative.com/the-actual-point-of-the-deportations/
Everyone keeps talking about returning Garcia.
That is not what the supreme court said.
“The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador”
SCOTUS said that the state department must fascilitate Garcia’s release.
Garcia is an El Salvadoran. he is in El Salvador.
It does not matter how he got there – the US has no actual authority to bring him back to the US.
The only thing the US government has the authority to do, is to stop paying for his incarceration – presuming we are paying for his incarceration.
Absolutely we have “influence” over El Salvador.
The US has influence over the world, but we can not make El Salvador do anything, and a US court can not compel the US government to use whatever influence we have – you can not order people to persaude others.
you can not order them to forcefully persuade others.
You can only order people to do what they have the full power and authority to do.
The Supreme court said. “the order…” meaning Judge Xinis order was proper.
“SCOTUS said that the state department must fascilitate Garcia’s release.”
MUST is the key word here. They are saying the governmnet must make every effort to bring him back and they can.
You’re assuming Trump is too weak or innefectual to be able to facilitate that by assuming we can’t do anything about it. We can. Trump can engage in diplomatic negotiations. Threaten to withhold the funds he promised them, or even impose tariffs or remove them to entice his release.
LIke you said we can certainly influece Salvador to release him. But what Xinis is asking the government is to show her that it doing something to influence his release. Trump is ignoring the court and SCOTUS because it feels it can and does.
The president of El Salvador claimed he didn’t have the authority to release him, but we all know that’s not true. He’s the president. It’s more likely he’s colluding with Trump to help him give the middle finger to the courts.
“Must” “make best effort.” They could be talking with El Salvador for options. Do you think they would want the world to know exactly what is being said?
And, in the end, if Bukele says ‘eff off’, the admin made their best effort, thereby still fulfilling the lower court’s order.
Give it up, Georgie sore-ass, you’ve lost this one.
Bukele will do whatever Trump tells him to do–Trump is using our taxpayer money to pay for the incarceration of Garcia and the others, and has suggested constructing more El Salvadoran gulags to which to deport American citizens. Bukele wouldn’t say “eff off” unless Trump told him to, which Trump will do because of his malignant narcissism.
rabble rabble rabble!
– what Geeg just said
😂 xinis can’t have the cake and eat it too… the first court found 2 things. Garcia is Ms 13 and can’t be deported to el salvador. Stupid is as stupid does.
Bukele claims his citizens. Quite a few.
Not true. According to the Poynter Institute–April 16, 2025:
“Attorney General Pam Bondi: “In 2019, two courts, an immigration court and an appellate immigration court, ruled that (Abrego Garcia) was a member of MS-13.”
This needs context. U.S. Immigration and Customs Enforcement arrested Abrego Garcia in 2019 as he was looking for day labor outside a Home Depot in Maryland. A police informant told police Abrego Garcia was an MS-13 member. Immigration judges denied Abrego Garcia bond, both initially and on appeal, citing the informant’s accusation.
In the initial denial, the judge said the determination of Abrego Garcia’s gang membership “appears to be trustworthy and is supported” by evidence from the Gang Field Interview Sheet which, in part, referenced the informant. Abrego Garcia’s attorneys have repeatedly said in court that the informant’s accusation was fabricated.
The immigration judges’ decision to deny bond is not equivalent to ruling that Abrego Garcia was a gang member, David Bier, associate director of immigration studies at the libertarian Cato Institute, said.
In immigration bond hearings, detainees have the burden of proof to show they are neither a flight risk nor a danger to the community. Abrego Garcia “failed to meet his burden to show that he was not a danger,” Bier said. That’s not the same as the government proving affirmatively that he was an MS-13 member.
“The immigration judge is only taking at face value any evidence that the government provides,” Bier said. “It is not assessing its underlying validity at that stage.”
Abrego Garcia later received an immigration protection called withholding of removal. Granting that protection required the Department of Homeland Security to decide Abrego Garcia was not “a danger to the security of the United States,” Bier said, quoting U.S. immigration law.
“The Trump administration did not appeal these determinations or the granting of withholding of removal,” Bier said. “So at that time, it did not consider him a threat and no new evidence has been presented since then.”
Simon Sandoval-Moshenberg, an attorney for Abrego Garcia, told PolitiFact his client has “never been convicted of any crime, gang-related or otherwise,” and we also found no court evidence he had been convicted. Neither of the immigration court proceedings constitute a conviction, because they were not trials.”
George, you say on one hand that the Court says the government must facilitate his RELEASE and in the very next sentence you say the government must make every effort to BRING HIM BACK. Which is it? Releasing him from prison doesn’t mean he is entitled to be brought back here.
Note that Senator Van Halen is fighting for the MD father on the same day an MD mother’s rapist and killer was found guilty without Van Halen saying one word about his actual constituent. This is who Dems fight for.
Hullbobby, its both. The point of bringing him back is to correct the “error’ the government made. Because the government admitted to making the error it is obligated to correct it.
“Note that Senator Van Halen is fighting for the MD father on the same day an MD mother’s rapist and killer was found guilty without Van Halen saying one word about his actual constituent. This is who Dems fight for.”
What does that have to do with Garcia? He’s has no criminal record, and has not been proven to be a gang member by the government. You seem to be ok with the government ignoring the law and the courts because they feel like it. You were opposed to Biden ignoring the law and the courts, right? It seems you are ok with that.
This reminds me of an actual case I read about. A man, who lived in a condo, died. His daughter moved into the condo before any probate proceedings were even opened, and was appointed adminstratrix of the Estate. The HOA assessment bill was sent. She ignored it (which was a violation of her duty as administratix). The Estate drug on for years because of endless litigation and appeals of every court order she didn’t like. She continued living in the condo and never paid any of the assessments, so when the HOA Board filed suit, she actually argued: “well, the Estate doesn’t own the condo, I don’t own the condo, so neither the Estate nor I is liable to pay the HOA assessments (which, with interest, penalties and attorney fees was rather substantial). My father is still listed as the legal owner, and he’s in heaven, so you’ll just have to go to heaven to get him to pay.” She was removed as adminstratrix. The HOA foreclosed and kicked her out, sold the condo and interplead the net proceeds with the probate court.
The BS argument of the Trump that although he sent Garcia to the El Salvadoran gulag and is paying for his incarceration but can’t get his release is the same kind of argument. Courts do know how to deal with such nonsense. If you can procure his arrest and incarceration, you can procure his release and return for due process.
Step One and only: Show us, dear lawyer/nurse/EMT/Judge/President Geegs, exactamundoly where in the God-Blessed Bill of Rights, or the Constitution of the United States, it says that a DISTRICT court shares checks and balances with the EXECUTIVE branch?
As far as I have read (I am a bit of a methodical reader at times), there are only three branches. LEGISLATIVE, i.e. Congress, i.e. the House of Representatives and the Senate. JUDICIAL, the Supreme Court and the court of FEDERAL appeals. and the EXECUTIVE, of which only two positions are names: President and Vice President of the United States. I don’t know about you, but I don’t see DISTRICT anywhere in there. So, as far as I am aware (and what the EXECUTIVE branch seems to think as well), the President of the United States (sharing checks and balances with Congress and the SC) can go tell a civilian to pound sand.
– rabble rabble
Gigenius,
It’s dragged, Einstein!
Facilitate all you want but if he’s a citizen of El Salvador and the Government of El Salvador says he is not going to be released your just urinating into the wind which would be especially messy and difficult for this judge to do. Short of Depends she has no standing.
So were is Garcia’s standing in this case? Is is not a prerequisite to an injunction? Xinins missed that in her law school.
The Constitution says the right to notice and due process applies to “all persons”.
The only person defying the Supreme Court is Judge Xinis, who has neglected to define what she means by “facilitate” or “effectuate.”
Xinis left herself an escape hatch from her own mess. Facilitate means nothing. She will let this case go, to save face. It is moot anyway. Salvadorian citizen is in his own sovereign Salvador. His “fear for safety” argument is also moot. He is in CECOT, safest place possible form him and his fellow gangsters. BTW, baby mama is silent on welfare checks collected while papa worked off the books.
There got to be a better way to deal with crooked judges who invent their own “laws”. 14 impeachments in 200 years show that this system does not work for the benefit of our society.
Something like being reversed by the Appeals court or SCOTUS 3x might work better as grounds for impeachment.
#. Facile- easy, without effort. Grease the sprockets
DEar Prof Turley,
First, and foremost, this is not ‘foreign policy’. This is domestic policy .. . and no ‘due deference’ to the Executive should be proffered in the initial particulars.
Secondly, the SCOTUS may well order the President to ‘facilitate’ (i.e. to make easy.) Garcia’s return in good faith, but only Congress can ‘effectuate’ (i.e. to bring about, effect) it – that is; through the threat of impeachment. So, don’t hold your breath.
(note. alas, if you can’t impeach Joe Biden .. . who can you impeach?)
Lastly, it’s disingenuous in the extreme to hang a sign on Door of America proclaiming, ‘give us your tired, your poor, your huddled masses yearning to breathe free’ and then, on the whim of the Executive, ship them to a hell hole in El Salvador.
*MAGA .. .
The New Colossus
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
Trump has the authority to effectuate it. As the president who can engage in foreign relations and diplomacy through the State Department he can certainly ask or demand that he be brought back. Trump is a bully and he gets what he wants. Remember, he has already paid El Salvador $6million to take these immigrants. He can threaten tariffs, or take away any more funding to effectuate Garcia’s return.
Well, of course Trump could facilitate and ‘effectuate’ it. .. but it seems clear, without proper inducement, he will not.
*if you have any tattoos, George, I suggest Lazer removal.
I think we have to defer to the Supreme Court’s determibation here.
We are paying for El Salvador to hold Tren de Arua terrorists, but not natives of El Salvador who are MS-13. Those would be incarcerated in CECOT in any case.
Yeah .. . it was as clear as mud.
The new colusus is the aspiration of Emma Lazurus. written over 100 years ago.
It is not and never has been US policy. It is not part of our law or constitution.
At the time it was written and for decades after – the US was excluding chinese from US immigration
Lazurus’s poem is explicitly about the immigration of the huddled masses from europe, not from everywhere
Nonsense. In 1907, at least, that sentiment was both the spirit and letter of U.S. ‘policy’ for the next 100 years.
*nor, for the most part, was it restricted to the huddled masses from Europe.
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome
“In 1907, at least, that sentiment was both the spirit and letter of U.S. ‘policy’ for the next 100 years.”
I challenge you to support hat contention by citing court decisions or legislation concerning immigration that directly refer to those lines. And your contention that any such period extended to 2007 is ludicrous.
Naturalization Acts of 1790, 1795, 1798, and 1802 (four iterations for maximum clarity)
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof….
____________________________________________________________________________________________________________________________________________
The American Founders, 1789/1790:
– The Nation
– The Law
– The Population
Illegals are illegal. The Biden Administration played games with our immigration laws and yet we are seeing more concern for the illegals than for our citizens. Ask the parents who lost loved ones to murder by illegals and then question who is really protected. It is time for the Democrats to at least pretend that they care about the American citizens instead of, at every turn, trying to ‘get Trump’. It is a poor substitute for ‘love of Country’!
How about every registered Democrat ‘taxed’ 10% of their incomes to pay for the benefits to illegals and better yet, offer sponsorship to watch over then for 10 years as they integrate into society. How about putting money behind the ‘love’ they feel for those who crossed our borders by Biden’s invitation.
Illegals already pay taxes. They have for decades. They paid into the system all this time. Now Trump is making it harder for them to pay taxes which means YOUR benefits will suffer in the long run. YOU will be paying more.
The only taxes they pay are state sales taxes, because there is no option left at the register in supermarket. They get paid off the books and collect welfare on account of anchor babies.
They pay federal income taxes, they pay medicare taxes, social security, state income taxes, property taxes, etc. They pay into the system like everyone else. That’s why the IRS gives them a tax ID No. So they can file taxes.
What ss number are they using to pay federal taxes, ss, state income, property etc etc?
How much do they pay into SS or Medicare? How much do they pay for health care? How much do they pay for education? How much do they pay for NY hotels, phones and cash?
Now how much do we pay for their health care, education, lawyers, court employees, police, insurance claims, SSI benefits, phones, food stamps etc etc.
I was on a jury overseeing the trial of an illegal alien who punched a policeman in the mouth. The defense used the he is a good hard working dad defense to try and get an acquittal. It didn’t work. A good hard working dad wouldn’t have put himself in a position to put his family in jeopardy. The bravado of to much to drink was also in play. So a good hard working dad gets plastered and punches a policeman in the mouth. The verdict was guilty. After the trial the judge met with the jury and voiced his surprise at the verdict. It was his attempt to tell us how heartless we were. My respect for the judiciary was never the same after this activist judge revealed himself as a manipulator rather than an enforcer of the law. Unwarranted mercy is an insult to the rule of law.
Think, what state was this in?
Tourists in most nations have legal rights. American tourists are protected by police and the courts in most foreign nations.
When you have gross incompetence, sending legal residents and even native born Americans to foreign prisons. The United States must have a court process to challenge this gross incompetence.
When have we sent native American citizens to foreign prisons? Show me a case, and I’ll show you that they were legally extradited.
The Supreme Court needs to speak more like a court than the Oracle at Delphi.
For those unfamiliar, the Delphic Oracle was often dangerously vague and her pronouncements were open to multiple interpretations. Consider the fate of King Croesus of Lydia for example when he relied on Delphic judgment.
Young, I love your analogy!!! Unfortunately the empire that is getting hurt isn’t a foreign one.
Hullbobby, Too true. Some of our federal judges seem bent on destroying the country.
“Facilitate” is a legal term of art, in the immigration context.
Turley parsing semantics? No surprise there. Lawyers know that the court means by “facilitate”. The Supreme Court knows what it it means to “facilitate”.
“There is nothing worse than a feeling of being unfacilitated, but how does the court measure good faith facilitation?”
Well, Judge Xinis is doing exactly that by requiring the government to outline each step it’s taking to show how it’s facilitating the return of Garcia. I hasn’t shown it has officially asked the Salvadoran president. It hasn’t shown that it has taken any diplomatic actions to open a channel to discuss options. What is clear is that Trump’s administration doesn’t want to do anything. It wants the case to go away and for people to forget about it.
When the president of El Salvador was with Trump and the press directly asked him if he would return Garcia, he replied that he did not have the power to bring him back. How can that be? He’s the president. Surely he can order his release as easily as he took $6million from Trump.
Trump could do his favorite thing. Threaten to withhold money from El Salvador and force them to turn over Garcia.
What IS clear, is that Trump purposefully ignored an order that was in place preventing Garcia from being deported. Even the government admitted he was not supposed to be deported, but they did it anyway.
The claim that Garcia is a gang member has not been proven by the government. He has no criminal record. But now he’s a terrorist? Come on.
Once again the immigration judge’s order kept Abrego Garcia from being deported to Guatemala.
Six years ago, neither of AG’s lawyers contested this obvious mistake.
I cry “Boo-Hoo!” for so-called Maryland-Dad Kilmar Abrego Garcia.
If the U.S. Constitution is toothless and meaningless on this issue, it also means there is no longer Second Amendment gun rights or property rights! Things Republicans claim to support.
Gun rights and property rights only survive under a constitutional rule of law system (where local, state and federal laws circumscribe the U.S. Constitution).
These rights are not just based on actual letter & spirit of the U.S. Constitution but on years, decades and centuries of case law defining what those rights mean. For example the 2008 “Heller” ruling clarified that no local government could take away your gun rights.
Trump is strongly opposed to this system that protects gun rights and property rights. On his first day in office, merely hours after taking the Oath of Office, Trump reneged on his constitutional duty and tried to illegally amend the Fourteenth Amendment, bypassing the constitutional-amendment process.
If any president can violate the U.S. Constitution with unconstitutional executive orders, you no longer have any gun rights or any property rights. Any future president can take them away in a single day. The U.S. Constitution no longer matters! That is what Trump himself claims to support!
#. First, everyone should recognize the absolute danger every American citizen in as these issues are exposed to the public. On a scale of 1-10 , 10 being extreme danger, the circumstances are 10. These are unvetted foreign nationals within the US illegally. Feel the gravity right now as people have suffered atrocities never seen in the US before and in the millions.
Why was garcia picked up the first time and why wasn’t he immediately deported to a country other than el salvador. That informationis hard to find. Why was he pucked up in the home depot parking lot the second time? Random? Did his brother Cesar legally enter the US and become a citizen now living in Maryland?
The sticking point is García was found to be a gang member the first time in court and then released ? Doesn’t make sense?
Garcia has had due process in the first finding of gang membership. His due process of immediate deportation was not completed. What basis for a re-judgement of the first trial is there? Ms. Xinis is vacating the first judge finding ? On what grounds? This man is dangerous. He is unemployed. He’s living with a pregnant woman who has two disabled children from prior oregnancies.
Mr. Garcia had a criminal background upon illegal entry just as the new half million paroles do currently. He was inadmissible. The administration cannot simply deport garcia, a known criminal, to another country.
Garcia is repatriated and el salvador can proceed with due process and should. If they find he’s not a gangster he can be released into the Salvadoran population. If he is returned he can be incarcerated as a gang terrorist at public expense. What cannot be done is releasing dangerous people into the public, any public.
One of the big problems here is the refusal of the Supreme Court to actually resolve the questions before it.
In his brief, Sauer accepted the concept of “facilitation” as that term is used in ICE policy manuals. It means removing US barriers to entry when a person presents himself, nothing more. He disputed the authority of a court to require the President to “effectuate” Garcia’s return. He also argued that the courts had no authority to direct the president’s conduct of foreign relations, including making requests to or other interactions with El Salvador.
Read against what Sauer argued, the Supreme Court’s order was a complete win for the president. But the Court wrote its order in a way that could be read to mean nearly the opposite. Why the Court did this is a mystery. Eventually it will have to clean up the mess it has made.
It’s not a mystery. The court recognizes that Trump was wrong to deport Garcia. That Trump had no authority to do so. But he did it anyway because the president and his cadre of “advisors” chose to give the court the middle finger and dared them to do something about it.
Courts are becoming aware of how the administration is operating and they are issuing court orders preempting swift removals to states where a conservative court will be more favorable to Trump.
Trump is defying courts and intentionally obfuscating in court to avoid direct findings that will expose the administrations illegal sidestepping of due process and free speech rights.
I’ve read through the immigration laws and nowhere did I read that an illegal alien has due process rights. In fact most say deport immediately. Where is this due process coming from? Civil rights belong to citizens of this country – not illegals, not terrorists, not gang members and certainly not murderers.
BTeboe, it’s in the Constitution. It applies to everyone within our borders.
Ask the Dems why they support illegals voting? Is there no care for the Constitution?
Abrego Garcia has had three rounds in Immigration Court, represented by counsel each time. The last time, this adjudicated member of MS-13 was ordered not to be sent to… Guatemala.
Xinis is a judicial disgrace. She should be removed from office.
So whom does Judge Xinis propose to hold in contempt? While the original process of deportation may have been flawed, is she assuming that her court has the authority to order a sovereign nation (El Salvador) to return one of their own citizens to the US? Sounds like the height of hubris to me.