Despite Nayib Bukele’s absurd comments, the courts have not called for El Salvador to ‘smuggle’ Abrego Garcia into the U.S.

We’ve posted my column, arguing that the Abrego Garcia controversy is not, as the Trump administration would have us believe, a profound constitutional dispute over separation of powers and judicial interference in the executive’s nigh plenary authority over the conduct of foreign relations.

To the contrary, it’s about the terms of the agreement regarding cooperation in detaining federal prisoners that has been struck between two sovereign nations — the United States, represented by the Trump administration, and El Salvador represented by the administration of President Nayib Bukele. The agreement’s terms are relevant because they affect Kilmar Armando Abrego Garcia, a Salvadoran national who lived illegally in the United States and who has a legitimate claim before a federal court that the Trump administration (a) illegally deported him to El Salvador and (b) is responsible for his being illegally held, pursuant to the agreement, in a notorious Salvadoran prison.

As noted in the column, I have another post coming on the Trump administration’s separation-of-powers distraction — which hinges on the tedious semantic distinction between whether the administration has been officiously ordered to effectuate, or more indulgently directed to facilitate, Abrego Garcia’s return to the United States for further judicial proceedings.

First, however, I want to address the assertion by President Bukele today that he will not return Abrego Garcia to the United States. As our James Lynch reports, Bukele made his provocative remarks at a joint press conference with President Trump after their Oval Office meeting. Like the president, several top administration security officials looked on in seeming approbation as Bukele spoke.

That’s unfortunate given that Bukele’s assertions were absurd. As James reports, when asked about returning Abrego Garcia to American custody, Bukele declared:

Of course I’m not going to do it. The question is preposterous. . . . How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.

Of course, no one has come close to suggesting that El Salvador or its president smuggle the detainee into our country. The idea would be to release the detainee into the custody of American agents, the simple inversion of the manner in which Bukele’s government took custody of Abrego Garcia (and about 260 other detainees) from American agents on March 15. That should be no problem since, after all, the Supreme Court unanimously ruled last week that our government, not Bukele’s government, is obliged to facilitate Abrego Garcia’s return to the U.S. for further court proceedings

As James further reports, administration officials were gratuitously combative in their rhetoric, with Trump’s deputy chief of staff, Stephen Miller, stating, “No version of this, legally, ends up with [Abrego Garcia] ever living here” in the United States. Perhaps not . . . but that’s beside the point.

Over the course of nearly two decades as a prosecutor, I had cases against any number of serious criminals — gang members and terrorists — as to whom I could state, at the time of their arrests, “No version of this, legally, ends up with them ever being free to walk America’s streets again.” Beating my chest this way, however, would not have made federal law and due process disappear. There would still have been the little matter of proving in court that we had a legal basis to keep the gang members and terrorists in custody and to secure life sentences against them.

It may very well be that, legally, Abrego Garcia will never live in the United States again. But the truth is, he has never lived here legally. That, of course, didn’t stop him from living in Maryland for the last six years. That’s because the first Trump administration (a) failed to appeal an immigration judge’s 2019 order prohibiting Abrego Garcia’s repatriation to El Salvador on fear-of-persecution grounds, and (b) allowed him to be released from custody to live and work in Maryland, notwithstanding that federal immigration law calls for illegal aliens to be detained until the conclusion of their removal proceedings.

To be clear, I am not faulting Miller for this; as James observes, he is an immigration hawk, as am I. (It didn’t used to be necessary to explain that one can simultaneously believe that the immigration laws must be enforced aggressively and that aggressive law enforcement honors due-process requirements — in no small part because failure to comply with due process gets enforcement efforts reversed by the courts.)

I am quite confident that, had Abrego Garcia’s case been brought to his attention, Miller would have been as enthusiastic for deportation in 2019 as he is today. It’s unusual, however, for individual cases to rise to the attention of White House staff. We do have to assume, though, that someone as well informed as Miller had to know that there were millions of illegal aliens being permitted by the first Trump administration to be at liberty and gainfully employed in the United States. That’s not because they wanted it that way. Congress wasn’t providing anything close to adequate resources to detain all the illegal aliens whose detention was expressly mandated by statutory law. And the Supreme Court, in its poorly reasoned, sharply divided decision in Zadvydas v. Davis (2001) concocted a habeas corpus right of illegal aliens to be released on bail if they cannot be deported within 90 days (usually, because no country, including their own, is willing to accept them).

Zadvydas suggested that there could be reasons, such as national security, to extend detention beyond 90 days in appropriate cases. Nevertheless, there is no indication that the first Trump administration challenged the immigration court’s ruling that Abrego Garcia could not be repatriated to El Salvador, or that it tried to deport him to some country other than El Salvador (since he was a removable illegal alien), or that it objected to his being released and permitted to work (which he was apparently doing for six years until he was arrested last month).

In any event, the issue is not whether, ultimately, Abrego Garcia may be deported to El Salvador or some other country, and whether he should be detained in the interim. No sensible person is claiming otherwise. The question is what due process is required to get from where we are now — namely, in a situation in which Abrego Garcia has been illegally repatriated and is sitting in a Salvadoran prison pursuant to the Trump administration’s agreement with Bukele’s government — to an outcome in which Abrego Garcia is lawfully deported. (However naively, I am holding out hope that his unlawful deportation is not the aim of law enforcement agencies and a president who is sworn to execute the laws faithfully.)

Among the most laughable of Bukele’s claims today, and of the administration’s undoubtedly choreographed failure to correct him, was that he has no power to return Abrego Garcia to the United States. As I detailed in the column today, when Bukele’s own Ministry of Public Affairs announced the agreement with the Trump administration to take custody of federal prisoners, it specified that (a) the agreement was for temporary detention, a period of just one year, and (b) that by the conclusion of that period, the United States would make a final “decision on [the detainees’] long-term disposition” (emphasis added).

Consequently, it is the basic assumption of the agreement Bukele himself negotiated with Secretary of State Marco Rubio that the United States government maintains ultimate control over the detainees currently held in Bukele’s prison. That necessarily means those prisoners could end up back in the United States.

And pay no attention to Bukele’s inane misdirection: The agreement does not contemplate that he or his government would physically bring (or “smuggle”) prisoners back into the United States; it contemplates that his government will, sometime in the next year, turn the prisoners over to American agents (probably in San Salvador), or transfer the prisoners at the direction of the Trump administration (or, perhaps, keep them in El Salvador for some additional period of time, assuming the Trump administration pays for it — as it has paid $6 million for the current arrangement).

Tellingly, Bukele’s remarks apparently did not delve into the terms of his custody cooperation agreement with the Trump administration.

Bukele also did not claim that the Salvadoran government had brought charges of any kind against Abrego Garcia. Such a development would not excuse the U.S. government’s illegal repatriation; there is a legal process under federal law for extraditing a person (whether an alien or a citizen) to face foreign charges. On that point, there has been a good deal of loose talk by the Trump administration that Abrego Garcia is a member of MS-13, but that claim has never even been charged in court, much less proven. There was no indication today that El Salvador has formally accused Abrego Garcia of MS-13 membership.

To be clear, because Abrego Garcia is a removable alien, it would not be necessary to establish his MS-13 membership in order to deport him legally. Of course, if the DOJ and DHS could establish Abrego Garcia’s MS-13 membership, then the Trump administration could remove him under immigration law because MS-13 (since February) has been formally designated as a terrorist organization. But as of now, Abrego Garcia denies that he is a member of that gang, and our government has not proved that he is. Indeed, as Judge Paula Xinis and the Fourth Circuit have detailed, the evidence that the government presented on that point is weak; and in the proceedings before Judge Xinis, the DOJ withdrew a claim that Abrego Garcia is a danger to the community, a reversal that is hard to believe the DOJ would make if it had convincing evidence of MS-13 membership.

If Abrego Garcia is returned to the United States, the government would have to prove that he is a member of MS-13 in order to deport him under the terrorism designation. As I’ve explained in connection with the Venezuelan deportees the administration accuses of membership in Tren de Aragua, a court would not question the State Department’s designation of a terrorist organization, but the alien would be entitled to mount a habeas corpus challenge to the government’s allegation that he is a member of the designated group and thus subject to deportation.

Assuming the government lacks sufficient evidence to connect Abrego Garcia to MS-13, it may still deport him because he is a removable illegal alien. It just may not deport him to El Salvador. That point, as I’ve previously noted, raises the question of whether AG Bondi could revisit and reverse the immigration judge’s 2019 withholding of removal ruling. That’s a complicated issue, so I’ll address it in a separate post.

For now, suffice it to say that President Bukele’s comments were nonsensical because (a) no one is suggesting that he could or should “smuggle” Abrego Garcia into the United States, and (b) his own agreement with our government states that the United States will decide on the ultimate disposition of Abrego Garcia and other detainees that El Salvador is currently holding under that agreement.

The courts, including the Supreme Court, have held that the Trump administration must facilitate Abrego Garcia’s return to the United States for further court proceedings. Nothing Bukele said at the White House on Monday provided a basis to believe there is any legal or factual impediment to the Trump administration’s compliance with the courts’ directive.