The Supreme Court has issued back-to-back orders allowing the deportation of illegal immigrants to South Sudan — a move that has likely laid the groundwork for the Trump administration to remove Salvadoran national Kilmar Abrego Garcia to a third country, even before his criminal trial in Tennessee begins.
While Abrego Garcia has not been convicted on human smuggling charges, legal experts say the high court’s orders on June 23 and Thursday, respectively, make clear that people with final orders of removal can be deported to countries other than the one they originally selected or, in Abrego Garcia’s case, other than the one barred by a prior court decision — regardless of whether they have served criminal sentences.
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“This case is a straightforward third country removal case,” Art Arthur, a former immigration judge and fellow at the Center for Immigration Studies, said of the Abrego Garcia case. Arthur pointed specifically to 8 C.F.R. § 208.16(f), noting the statute’s language stipulates that “nothing in this section shall prevent DHS from removing an alien to a third country other than the country to which the alien to which removal has been withheld.”
Under the current statutory framework, Arthur said, federal authorities still cannot send Abrego Garcia and illegal immigrants in similar situations to countries for which they have withholding removal orders, “but you can send them anywhere [else] you want.”
DOJ makes clear Abrego Garcia will be removed
Abrego Garcia, who was deported to El Salvador in March despite a 2019 order prohibiting his return there, was returned to the U.S. after federal charges were brought against him in Tennessee for human smuggling. A magistrate judge in that case has ruled that he may be released pending his trial, but his defense attorneys requested he remain in jail, citing Department of Homeland Security threats that he would be sent to a country different from his homeland if released.
At a hearing Monday in Maryland, a Justice Department attorney told U.S. District Judge Paula Xinis that if that happens, ICE will not delay deportation.
“There’s no intention to just put him in limbo in ICE custody while we wait for the criminal case to unfold,” DOJ attorney Jonathan Guynn said. “He will be removed, as would any other illegal alien in that process.”
Supreme Court rulings clears way for ‘third country’ deportations
Legal analyst and former federal prosecutor Bill Shipley wrote for his Substack blog Monday that the judge in Maryland has no authority to interfere in the implementation of Abrego Garcia’s final removal order, even if that means he ends up in a country far from his birthplace.
“Congress EXPLICITLY set forth what ‘judicial review’ is authorized by statute in matters involving the [Immigration and Nationality Act],” Shipley wrote, citing 8 U.S.C. § 1252. “Once there is a Final Order of Removal, the implementation or operation of that removal is solely within the province of ICE, and their decisions are not subject to court review.”
Shipley also pointed to the Supreme Court’s Thursday order in the South Sudan case, which nullified any “remedial” orders by the lower court and made clear that deportation to a third country does not require additional due process.
He argued that the Trump administration has already “made what was wrong, right” by returning Abrego Garcia to the U.S. after the mistaken deportation to El Salvador and is now acting well within its authority to remove him elsewhere.
Third-country removals used as deterrent
Legal experts told the Washington Examiner that the threat to remove Abrego Garcia to a third country, such as South Sudan, could be a mechanism the government is using as a coercive tool for leverage, noting that Abrego Garcia could still plead guilty to his Tennessee charges or recant his fears of returning to El Salvador if he aims to avoid deportation to South Sudan.
DHS officials say the third-country removals are also intended to send a broader message to possible border-crossers. Assistant Secretary Tricia McLaughlin told the Washington Examiner that the new approach reflects the administration’s priority to “get criminal illegal aliens out of American communities and out of our country.”
“These criminal illegal aliens sent to Sudan were so heinous even their own countries would not take them back,” McLaughlin said. “If you come to our country illegally and break our laws, you could end up in CECOT, Alligator Alcatraz, Guantanamo Bay, or South Sudan, or another third country.”
The remarks come as Customs and Border Protection reported that zero migrants were released into the interior in June — the first month under the Trump administration during which no parolees were admitted from the border.
Prosecution may take a back seat
The DOJ would not move forward with its prosecution of Abrego Garcia if he gets deported, Arthur said. “We don’t do criminal trials in absentia,” he said. “If he ends up leaving, they’ll just drop the case.”
He also explained that even if the charges are serious, as the DOJ has described them, federal agencies can still prioritize deportation. “There are hundreds per day of people that they pick up who are facing pending criminal charges at the state level … who they opt to deport in lieu of conviction,” Arthur said.
“If you believe everything that a grand jury found, this guy is a serial 100-time alien smuggler who’s run drugs and guns,” Arthur added. “If he gets cut loose,” they will seek his deportation.
Removal proceedings could begin soon
Abrego Garcia remains in criminal custody in Tennessee, with a hearing set for July 16 to determine whether he will be released to ICE custody. If so, federal officials are expected to act quickly, either by attempting to vacate the 2019 order barring removal to El Salvador or by executing a third-country transfer.
ABREGO GARCIA WILL BE DEPORTED TO THIRD COUNTRY IF RELEASED, DOJ SAYS
According to Shipley, any effort by Xinis to stop that process is now “beyond the jurisdictional authority of the district judge.”
“There is no role left for Judge Xinis to play in the outcome of the Immigration and Nationality Act proceedings that will determine his destination,” he wrote.