SCOTUS says Trump admin must "facilitate" Kilmar Abrego Garcia's return

The Trump admin fought the order — over a man it sent to a prison in El Salvador in an "administrative error" — and lost at all three levels of federal courts.

The U.S. Supreme Court on Thursday evening upheld a district court’s order that the Trump administration “facilitate and effectuate” the return of Kilmar Abrego Garcia, the man sent to a prison El Salvador illegally in what the administration called an “administrative error.”

The unsigned opinion for the court did note that the term “effectuate” in U.S. District Judge Paula Xinis’s initial order would need to be clarified when the case returned to her court, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.“

Xinis had initially set a deadline for Abrego Garcia’s return by 11:59 pm. on Monday, April 7. Because that deadline passed due to Chief Justice John Roberts’s administrative stay issued earlier that day, Thursday’s court order noted that “the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective.“

Because of that, the case will go back to Xinis, an Obama appointee, for further proceedings. The court continued: “The rest of the District Court’s order remains in effect but requires clarification on remand.“

There were no noted dissents in tonight’s order — an important fact in light of this administration’s actions in its first months.

There are three further pieces of the Supreme Court’s unsigned order discussing Xinis’s order:

• “The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

• “The intended scope of the term ‘effectuate’ in the District Court’s order

  is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.“

• “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

Although there is certain to be talk about the fact that the Supreme Court’s opinion does not use the word “return” in its discussion, it had already stated that, aside from the deadline, the rest of Xinis’s order remains in effect. “Clarification” is only specifically sought as to the word “effectuate” — and that was not even a disagreement with the term, just a question about its “intended scope.” Nowhere does the court say anything about the use of the word “return” in Xinis’s order.

The order from the court — and its focus on the government’s role in facilitating Abrego Garcia’s return — bore similarities to Monday’s opinion from Judge J. Harvie Wilkinson, a Reagan appointee, concurring in the order from the U.S. Court of Appeals for the Fourth Circuit denying the government’s request for a stay of Xinis’s order.

That unanimous order from the three-judge panel of the appeals court on Monday came shortly after the Justice Department asked the Supreme Court to vacate Xinis’s order

Of the 13 judges — including seven appointed by Republican presidents — to look at the Trump administration’s actions here, none have sided with the administration.

[UPDATE, 10:50 p.m.: Judge Paula Xinis issued an order following Thursday night’s Supreme Court ruling, ordering the government to "take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible" and scheduling a status conference in the case for 1 p.m. Friday.

Additionally, Xinis ordered the Justice Department to file a declaration by 9:30 a.m. Friday detailing where Abrego Garcia is and what steps have been and will be taken to facilitate his return.]

Justice Sonia Sotamayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote a statement respecting the court’s handling of the matter, noting, “I would have declined to intervene in this litigation and denied the application in full.“

That said, given the circumstances, she continued, “I agree with the Court’s order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador.”

She then detailed her own list of what that means:

• “That means the Government must comply with its obligation to provide Abrego Garcia with ‘due process of law,’ including notice and an opportunity to be heard, in any future proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993).”

• It must also comply with its obligations under the Convention Against Torture. See

  Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 113.

• Federal law governing detention and removal of immigrants continues, of course, to be binding as well. See 8 U. S. C. §1226(a) (requiring a warrant before a noncitizen “may be arrested and detained pending a decision” on removal); 8 CFR §287.8(c)(2)(ii) (2024) (requiring same); see also 8 CFR §241.4(l) (in order to revoke conditional release, the Government must provide adequate notice and “promptly” arrange an “initial informal interview . . . to afford the alien an opportunity to respond to the reasons for the revocation stated in the notification”).

• Moreover, it has been the Government’s own well-established policy to “facilitate [an] alien’s return to the United States if . . . the alien’s presence is necessary for continued administrative removal proceedings” in cases where a noncitizen has been removed pending immigration proceedings. See U. S. Immigration and Cus-

  toms Enforcement, Directive 11061.1, Facilitating the Return to the United States of Certain Lawfully Removed Aliens, §2 (Feb. 24, 2012).

Finally, although the Trump administration was clearly admonished on Thursday evening, it is important to remember what the Justice Department sought. Sotomayor laid out the stakes, tying it to her dissent on Monday in the 5-4 Supreme Court order over how challenges to Trump’s Alien Enemies Act proclamation can proceed:

The Government now requests an order from this Court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law. The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong. See Rumsfeld v. Padilla, 542 U. S. 426, 447, n. 16 (2004); cf. Boumediene v. Bush, 553 U. S. 723, 732 (2008). The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene. See Trump v. J. G. G., 604 U. S. ___, ___ (2025) (SOTOMAYOR, J., dissenting) (slip op., at 8). That view refutes itself.

For now, at least, it did.

This was, procedurally, a repeat of the situation faced by the Supreme Court earlier this year in the case over State/USAID contracts — but this time a person, not contracts, was at issue. In both cases, the district court had set a deadline, and it passed due to an administrative stay issued by Roberts while the court considered the Trump administration’s request to block the district court’s order.

With U.S. District Judge Paula Xinis's initial deadline for Abrego Garcia’s return passed, the Supreme Court did what it did with U.S. District Judge Amir Ali's order in the State/USAID contracts case: It is sending the case back to the district court to set a new timeline — and, with that, the Supreme Court set parameters for how it wishes to see the matter proceed.

This was, in my view, the best-case scenario for Abrego Garcia at this point, as I wrote shortly before the Supreme Court’s order.

And yet, it is not a good solution, as was made clear in Sotomayor’s statement. Abrego Garcia remains in El Salvador’s CECOT prison so far as we know, and his case will now be further drawn out with proceedings before Xinis on the “clarification” requested by the Supreme Court.

As Sotomayor wrote, “To this day, the Government has cited no basis in law for Abrego Garcia’s warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. Nor could it.“

It has been 26 days since Kilmar Abrego Garcia was on the third flight to that prison on March 15 in what the government admits was “an oversight” — but, despite the important order from the Supreme Court Thursday night, the court fight over his return is not yet over.