Steve Vladeck: “Abrego Garcia, Constructive Custody, and Federal Judicial Power”

The U.S. government has claimed that the return of a noncitizen wrongfully deported to El Salvador is not within its power because the government has transferred him to the authority of the Salvadoran government and he is in a Salvadoran prison.  The case has provoked considerable controversy, including that surrounding the firing of a senior Justice Department attorney.

Steve Vladeck critically analyzes the government’s claim:

“[A]t a more fundamental level, it would be rather stunning if the law were otherwise. A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of `administrative error,’ and thereby wash its hands of any responsibility for what happens next. Rather than providing fodder for snarky comments from the White House Press Secretary, that possibility should terrify all of us—and, hopefully, the Fourth Circuit and the Supreme Court as well—and push courts to provide whatever relief is possible under the circumstances . . . .”

Check out Steve’s post.

UPDATE (Apr. 7):  The district court has ordered the U.S. government to return Abrego Garcia to the United States.

KJ