Chief Justice Roberts Stays District Court Order That MS-13 Member Be Returned From El Salvador By Midnight Tonight

Chief Justice Roberts Stays District Court Order That MS-13 Member Be Returned From El Salvador By Midnight Tonight

This is the second time in the past few days that the Supreme Court has issued a stay of a District Court Order involving challenges to the Trump administration. Last Friday the Supreme Court (5-4) stayed a Massachusetts District Court Order forcing the Department of Education to pay teacher training grants. Chief Justice Roberts would have denied that stay.

The case is about Kilmar Armando Abrego Garcia who was deported to El Salvador. You can read his background and the vast procedural background in the government’s Application to Vacate (case docket) an injunction issued by the District Court of Maryland ordering the federal government to return Garcia to the United States by midnight tonight. The short version is that Garcia was an MS-13 member illegally in the U.S., he went through the immigration system removal process and lost, then filed an aslylum claim and lost that too, and was ordered removed from the country with a big stipulation – he could not be removed back to El Salavador for fear he would be harmed by other gangs.

So there is no dispute that the government was right to deport him, but the government admits it made an error in sending him back to El Salvador. Here’s a somewhat longer version from the Application:

On Friday afternoon, a federal district judge in Maryland ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight. Complicating the negotiations further, the alien is no ordinary individual, but rather a member of a designated foreign terrorist organization, MS-13, that the government has determined engages in “terrorist activity” or “terrorism”—or “retains the capability and intent to engage in terrorist activity or terrorism”—that “threatens the security of United States nationals or the national security of the United States.” 8 U.S.C. 1189(a)(1)(B) and (C); see Specially Designated Global Terrorist Designations (Feb. 6, 2025), 90 Fed. Reg. 10,030 (Feb. 20, 2025). The order compels the government to allow Kilmar Armando Abrego Garcia to enter the United States on demand, or suffer the judicial consequences.

Even amidst a deluge of unlawful injunctions, this order is remarkable. Even respondents did not ask the district court to force the United States to persuade El Salvador to release Abrego Garcia—a native of El Salvador detained in El Salvador— on a judicially mandated clock. For good reason: the Constitution charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists, including by effectuating their removal. And this order sets the United States up for failure. The United States cannot guarantee success in sensitive international negotiations in advance, least of all when a court imposes an absurdly compressed, mandatory deadline that vastly complicates the give-and-take of foreign-relations negotiations. The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge’s bidding. The Constitution vests the President with control over foreign negotiations so that the United States speaks with one voice, not so that the President’s central Article II prerogatives can give way to district-court diplomacy. If this precedent stands, 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. Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States’ diplomatic relations with the whole world.

Compounding these errors, Congress has already made clear that the district court here lacked authority to grant any relief at all—let alone the arbitrary, infeasible relief it ordered. District courts lack jurisdiction under 8 U.S.C. 1252(g) to “hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to * * * execute removal orders against any alien under” the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., except as otherwise provided. Yet the district court here allowed a collateral challenge to Abrego Garcia’s removal that Congress foreclosed. Respondents emphasize that Abrego Garcia was improperly removed to El Salvador because, although he could be removed anywhere else in the world under a 2019 order of removal, that order granted statutory withholding of removal to El Salvador alone. But, while the United States concedes that removal to El Salvador was an administrative error, see App., infra, 60a, that does not license district courts to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight. For starters, because MS-13 members such as Abrego Garcia have since been designated members of a foreign terrorist organization, they are no longer eligible for withholding of removal under 8 U.S.C. 1231(b)(3)(B). Further, the United States has ensured that aliens removed to CECOT in El Salvador will not be tortured, and it would not have removed any alien to El Salvador for such detention if doing so would violate its obligations under the Convention Against Torture. Moreover, respondents treat the relief here as “routine,” Resp. C.A. Stay Opp. 1, but that relief goes far beyond merely facilitating an alien’s return, which is what courts have ordered in other cases. This order—and its demand to accomplish sensitive foreign negotiations post-haste, and effectuate Abrego Garcia’s return tonight—is unprecedented and indefensible.

This paragraph from the Applications summed up what is at stake, which is the need for the Supreme Court to rein in runaway District Courts:

In one respect, at least, this order is nothing new. It is the latest in a litany of injunctions or temporary restraining orders from the same handful of district courts that demand immediate or near-immediate compliance, on absurdly short deadlines. These orders virtually guarantee that decisions on sensitive, weighty, and vigorously disputed issues will be made after “barebones briefing, no argument, and scarce time for reflection.” Department of Educ. v. California, No. 24A910, 2025 WL 1008354, at *2 (U.S. Apr. 4, 2025) (Kagan, J, dissenting).1 Such orders unduly burden the parties and appellate courts, and they obstruct meaningful and orderly appellate review.

The 4th Circuit denied a stay moments after the government filed its Application in the Supreme Court.

Chief Justice Roberts, who oversees the 4th Circuit, quickly issued a stay pending further briefing:

Order entered by The Chief Justice: Upon consideration of the application of counsel for the applicants, it is ordered that the April 4, 2025 order of the United States District Court for the District of Maryland, case No. 8:25-cv-951, is hereby stayed pending further order of The Chief Justice or of the Court. It is further ordered that a response to the application be filed on or before Tuesday, April 8th, 2025, by 5 p.m. (EDT).

Although the Order says the response is due by April 8th at 5 p.m., in fact the Response was filed right around the time the Order was entered.

I expect things to move quickly, and likely by the end of the week we will have a ruling on the stay from the full court. Let’s home that the Supreme Court is on a roll here, and that there will be more stays coming through.

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