MEMORANDUM OPINION
In 2019, an immigration judge—acting
under the authority delegated by the United States Attorney General and
pursuant to powers vested by Congress—granted Plaintiff Kilmar Armando
Abrego Garcia (“Abrego Garcia”) withholding of removal, thereby
protecting him from return to his native country, El Salvador. ECF No. 1
¶ 41; ECF No. 1-1. Such protection bars the United States from sending a
noncitizen to a country where, more likely than not, he would face
persecution that risks his “life or freedom.” See Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. §§
208.16–.18 & .24 (setting forth the standard for withholding of
removal and the procedures required for its termination).
Six
years later, without notice, legal justification, or due process,
officers from U.S. Immigration and Customs Enforcement (“ICE”), a
subagency of the Department of Homeland Security (“DHS”), put him on a
plane bound for the Terrorism Confinement Center (“CECOT”) in El
Salvador. ECF No. 1¶ 59.1
Neither the United States nor El Salvador have told anyone why he was
returned to the very country to which he cannot return, or why he is
detained at CECOT.2
See Hr'g Tr., Apr. 4, 2025, 25: 13–14 (Mr. Reuveni: “We have nothing to
say on the merits. We concede he should not have been removed to El
Salvador.”); see Hr'g Tr., Apr. 4, 2025, 34:25–35:5 (The Court: “[W]hat
basis is he held? Why is he [in CECOT] of all places?” ․ Mr. Reuveni: “I
don't know. That information has not been given to me. I don't know.”).
That
silence is telling. As Defendants acknowledge, they had no legal
authority to arrest him, no justification to detain him, and no grounds
to send him to El Salvador 3 —let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.4
Having confessed grievous error, the Defendants now argue that this
Court lacks the power to hear this case, and they lack the power to
order Abrego Garcia's return. ECF No. 11 at 3. For the following
reasons, their jurisdictional arguments fail as a matter of law.
Further, to avoid clear irreparable harm, and because equity and justice
compels it, the Court grants the narrowest, daresay only, relief
warranted: to order that Defendants return Abrego Garcia to the United
States. (Emphasis added for this article.).
I. Background
Abrego Garcia was born and raised in
Los Nogales, El Salvador. ECF No. 1-1 at 2. His family owned a small and
successful pupuseria. Id. For years, they were subject to extortion and
threats of death by one of El Salvador's most notorious gangs, Barrio
18. Id. at 2. The gang used Abrego Garcia as a pawn in its extortion,
demanding that his mother give Abrego Garcia over to the gang or he and
others in their family would be killed. Id. at 3. Attempting to escape
the gang's reach, the family moved three times without success. Id. To
protect Abrego Garcia, they ultimately sent him to the United States to
live with his older brother, a U.S. citizen, in Maryland. ECF No. 1 ¶
22.
Abrego Garcia lived in Maryland for many years without lawful
status. Id. In early 2019, while waiting at the Home Depot in
Hyattsville, Maryland, to be hired as a day laborer, Abrego Garcia was
arrested. Id. ¶¶ 25–26. The Prince George's County Police Department
questioned him about gang affiliation, but nothing came of it. Id. ¶ 27.
He was then turned over to ICE custody. Id. ¶ 28.
On March 29,
2019, DHS initiated removal proceedings against Abrego Garcia pursuant
to 8 U.S.C. § 1182(a)(6)(A)(i). ECF No. 1 ¶ 29. On April 24, 2019,
Abrego Garcia appeared before an immigration judge (“IJ”) where he
conceded his deportability and applied for asylum, withholding of
removal, and protection under the Convention Against Torture. ECF No.
1-1.
Pending resolution of the requested relief, DHS argued for
Abrego Garcia to be detained in ICE custody. ECF No. 1 ¶ 30. DHS relied
principally on a singular unsubstantiated allegation that Abrego Garcia
was a member of MS-13.5
The IJ ultimately detained Abrego Garcia pending the outcome of his
requested relief from deportation, a decision affirmed by the Board of
Immigration Appeals. ECF Nos. 11-1 & 11-2.
October 10, 2019,
following a full evidentiary hearing, the IJ granted Abrego Garcia
withholding of removal to El Salvador pursuant to 8 U.S.C. §
1231(b)(3)(A). As a matter of law, withholding of removal prohibits DHS
from returning an alien to the specific country in which he faces clear
probability of persecution. In Abrego Garcia's case, the IJ concluded
that he was entitled to such protection because the Barrio 18 gang had
been “targeting him and threatening him with death because of his
family's pupusa business.” ECF No. 1-1 at 2. DHS never appealed the
grant of withholding of removal, and so the decision became final on
November 9, 2019.6
See Hr'g Tr., Apr. 4, 2025, 24:15–16 (Mr. Reuveni: “The government did
not appeal that decision, so it is final.”). Accordingly, as Defendants
have repeatedly admitted, they were legally prohibited from deporting
Abrego Garcia to El Salvador. See Hr'g Tr., Apr. 4, 2025, 25:6–7 (Mr.
Reuveni: “There's no dispute that the order could not be used to send
Mr. Abrego Garcia to El Salvador.”).
For the next six years,
Abrego Garcia lived in Maryland with his wife and their three children.
ECF No. 1 ¶¶ 24–25. He complied fully with all directives from ICE,
including annual check-ins, and has never been charged with or convicted
of any crime. ECF No. 1-3, ECF No. 1 ¶ 45.
On March 12, 2025,
while driving home from work with his young son in the car, Abrego
Garcia was stopped by ICE agents. Id. ¶¶ 48–49. The officers had no
warrant for his arrest and no lawful basis to take him into custody;
they told him only that his “status had changed.” Id. ¶ 50. He was first
transported to an ICE facility in Baltimore, Maryland. Id. ¶¶ 51–53.
Next, ICE agents shuttled him to detention facilities in Louisiana and
La Villa, Texas. Id. ¶¶ 54–57. He was allowed a handful of calls to his
wife. He said that he was told he would see a judge soon. Id. But that
never happened.
Three days later, on March 15, 2025, without any
notice, legal process, or hearing, ICE forcibly transported Abrego
Garcia to the Terrorism Confinement Center (“CECOT”) in El Salvador, a
notorious supermax prison known for widespread human rights violations.
ECF No. 1 ¶ 59; ECF No. 11-3 at 2; ECF No. 10-2. On that day, two planes
carried over 100 aliens to CECOT purportedly pursuant to the Alien
Enemies Act, ECF No. 11-3 at 2, the legality of which is the subject of
separate litigation. See J.G.G. v. Trump, No. 1:25-cv-766 (JEB), 2025 WL
890401 (D.D.C. Mar. 24, 2025). A third plane included “aliens with
Title 8 removal orders;” many of them were in ICE custody awaiting
asylum and other protective hearings in the United States. ECF No. 11-3
at 2; see J.G.G. v. Trump, No. 1:25-cv-766 (JEB), ECF Nos. 67-5–67-20.
Once the planes arrived in El Salvador, the male detainees 7
were stripped and shackled. Their heads were shaved, and they were
marched into CECOT to join nearly 40,000 other prisoners held in some of
the most inhumane and squalid conditions known in any carceral system.
ECF No. 10-3. Since then, no one has heard from Abrego Garcia. ECF No. 1
¶ 41.
To effectuate a mass relocation of those detained by the
United States, the federal government struck an agreement with El
Salvador whereby it would pay the Salvadoran government six-million
dollars for placement of the detainees in “very good jails at a fair
price that will also save our taxpayer dollars.” Marco Rubio
(@SecRubio), X (Mar. 16, 2025, 7:59 AM),
https://x.com/SecRubio/status/1901241933302825470. El Salvador's
President, Nayib Bukele, has publicly touted the agreement terms: “We
are willing to take in only convicted criminals (including convicted
U.S. citizens) into our mega-prison (CECOT) in exchange for a fee.”8
ECF No. 10-5; Nayib Bukele (@nayibbukele), X (Apr. 4, 2025, 10:23 AM),
https://x.com/nayibbukele/status/1901245427216978290. According to a
memorandum issued by El Salvador's Ministry of Foreign Affairs, the
agreement provides that the detainees will be held “for one (1) year,
pending the United States’ decision on [their] long term disposition.”
See Matthew Lee & Regina Garcia Cano, Trump Officials Secretly
Deported Venezuelans and Salvadorans to a Notorious Prison in El
Salvador, ASSOCIATED PRESS (Mar. 15, 2025),
https://apnews.com/article/trump-deportations-salvador-tren-aragua-64e72142a171ea57c869c3b35eeecce7.
After
Abrego Garcia was transferred to CECOT, Defendant, DHS Secretary,
Kristi Noem, personally toured the facility alongside senior Salvadoran
officials. U.S. Dep't of Homeland Sec., Inside the Action: Secretary
Noem's Visit to El Salvador, DHS,
https://www.dhs.gov/medialibrary/assets/video/59108 (last visited Apr.
4, 2025). From inside the prison walls, Secretary Noem declared that
transferring individuals previously detained on U.S. soil to CECOT
remains “one of the tools in our [the United States’] toolkit that we
will use if you commit crimes against the American people.” U.S. Dep't
of Homeland Sec., How It's Going, DHS,
https://www.dhs.gov/medialibrary/assets/video/59108 (last visited Apr.
4, 2025) (emphasis added).
Although the legal basis for the mass
removal of hundreds of individuals to El Salvador remains disturbingly
unclear, Abrego Garcia's case is categorically different—there were no
legal grounds whatsoever for his arrest, detention, or removal. Nor does
any evidence suggest that Abrego Garcia is being held in CECOT at the
behest of Salvadoran authorities to answer for crimes in that country.
Rather, his detention appears wholly lawless.
Based on these
events, Abrego Garcia, through counsel, and along with his wife,
Jennifer Stefania Vasquez Sura, and their son, A.A.V., by and through
his mother and next friend,9
filed suit in this Court on March 24, 2025, against DHS Secretary Noem;
Acting Director of U.S. Immigration and Customs Enforcement, Todd
Lyons; Acting Executive Associate Director of ICE Enforcement and
Removal Operations, Kenneth Genalo; ICE Baltimore Field Office Director,
Nikita Baker; Attorney General, Pamela Bondi; and Secretary of State,
Marco Rubio (collectively “Defendants”). Abrego Garcia specifically
alleges that his removal to El Salvador violated the Immigration and
Nationality Act, 8 U.S.C. § 1231(b)(3)(A)(Count I); the Due Process
Clause of the Fifth Amendment (Count II); and the Administrative
Procedure Act, 5 U.S.C. § 706(2) (Count III); and, pleaded in the
alternative, qualifies him for habeas relief pursuant to 28 U.S.C. §
2241 (Count V). ECF No. 1. The matter is now before the Court on
Plaintiffs’ motion for preliminary injunction, ECF No. 6, following full
briefing and a hearing held on April 4, 2025. This Memorandum Opinion
sets forth the Court's findings in support of the Order entered on April
4, 2025.
II. Jurisdictional Challenges
The Defendants’ only
meaningful challenge to the motion is that this Court lacks the power
to hear this case. They advance three arguments. The Court considers
each in turn.
A. The Court lacks Jurisdiction Because the “Core” of the Claims Sound in Habeas
Defendants
first argue that because Abrego Garcia challenges his confinement in
CECOT, the “core” of his claims sound only in habeas brought pursuant to
28 U.S.C. § 2241 et seq. ECF No. 11 at 7, citing DHS v. Thuraissigiam,
591 U.S. 103, 117 (2020) (“habeas ․ is the appropriate remedy to
ascertain ․ whether any person is rightfully in confinement or not.”).
And as such, suit is proper only against the immediate “custodian” (the
Warden of CECOT) and in the jurisdiction where Abrego Garcia is confined
(El Salvador). Id. at 9.
Defendants are wrong on several fronts.
Abrego Garcia exclusively challenges his lawless return to El Salvador,
not the fact of his confinement. ECF No. 1 at 16-20. This is the core of
his claim, as Defendants concede, which is why his suit would remain
equally strong had Defendants released Abrego Garcia to the streets of
El Salvador instead of CECOT. Hr'g. Tr., Apr. 4, 2025, at 19. As
Defendants did in J.G.G. v. Trump, Civil Action No. 25-766 (JEB), 2025
WL 890401, at *7–8 (D.D.C. Mar. 24, 2025), they fundamentally ignore the
difference between challenging legality of removal as opposed to
confinement. Id.10
For purposes of this decision, however, Abrego Garcia simply does not
challenge his confinement. The removal itself lies at the heart of the
wrongs. Thus, the Court need not wade into the murky jurisdictional
implications that flow from such a challenge.
But even if the
Court considers the thorny question of “custody” as it pertains to
Abrego Garcia's habeas claim (Count V), the Defendants are not out of
the woods. They do indeed cling to the stunning proposition that they
can forcibly remove any person—migrant and U.S. citizen alike —to
prisons outside the United States, and then baldly assert they have no
way to effectuate return because they are no longer the “custodian,” and
the Court thus lacks jurisdiction. As a practical matter, the facts say
otherwise.
The facts are that the United States exerts control
over each of the nearly 200 migrants sent to CECOT. The Defendants
detained them, transported them by plane, and paid for their placement
in the mega-jail until “the United States” decides “their long-term
disposition.”11
Against this backdrop, Defendants have produced no evidence to suggest
they cannot secure one such detainee, Abrego Garcia, for return to the
United States. (Emphasis added for this article.). Equally important, to credit Defendants’ argument would
permit the unfettered relinquishment of any person regardless of
immigration status or citizenship to foreign prisons “for pennies on the
dollar.”12
Nor
do the Defendants cite any authority to support this eye-popping
proposition. Sure, they point the Court to Munaf v. Green, 553 U.S. 674
(2008), but that decision has little bearing here. In Munaf, the Court
reviewed whether plaintiffs, American citizens who voluntarily traveled
to Iraq and were subsequently detained for violations of Iraqi law,
could challenge their detention. The Court concluded that while the
district court retained jurisdiction in the first instance, id. 686, the
merits of the habeas challenge failed because “Iraq has the sovereign
right to prosecute Omar and Munaf for crimes committed on its soil.” Id.
at 695 (emphasis added).
Here, by contrast, Abrego Garcia is not
being held for crimes committed in or against El Salvador, the United
States, or anywhere else for that matter. His claims do not implicate
any question of competing sovereign interests, and so, Munaf offers
little guidance.13
(Emphasis added for this article.). Thus, while the success of Abrego Garcia's preliminary injunction
motion does not depend on the success of his habeas claim, Defendants
also fail to convince this Court that the claim will not survive in the
end. For purposes of this decision, suffice to say the Court retains
jurisdiction because Abrego Garcia challenges his removal to El
Salvador, not the fact of confinement.
B. Redressability
Defendants
next make a narrow standing argument, contending that because the
claims are not redressable, this Court lacks the power to hear the case.
ECF No. 11 at 10. Federal courts are ones of limited jurisdiction,
hearing only live “Cases” and “Controversies.” U.S. Const. art. III, §
2. A party's standing to maintain an action “is an essential and
unchanging part of the case-or-controversy requirement of Article III.”
Davis v. Fed. Election Comm., 554 U.S. 724, 733 (2008) (citations
omitted). To satisfy Article III standing, the plaintiff must make
plausible that he “(1)[ ] has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.”
Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528
U.S. 167, 180–81 (2000).
The Defendants’ redressability argument,
simply put, is that their placement of Abrego Garcia in an El Salvadoran
prison deprives them of any power to return him. Thus, they say, even
if Abrego Garcia succeeds on the merits, Defendants are powerless to get
him back. The facts demonstrate otherwise.
First, Defendants can
and do return wrongfully removed migrants as a matter of course. This is
why in Lopez-Sorto v. Garland, 103 F.4th 242, 248–53 (4th Cir. 2024),
the Fourth Circuit concluded that the Defendants could redress wrongful
removal to El Salvador by facilitating the plaintiff's return per DHS’
own directives. Id. at 253; see also Nken v. Holder, 556 U.S. 418, 436
(2009) (“Aliens who are removed may continue to pursue their petitions
for review, and those that prevail can be afforded effective relief by
facilitation of their return, along with restoration of the immigration
status they had upon removal.”).
Second, Defendants unilaterally
placed hundreds of detainees behind the walls of CECOT without ceding
control over the detainees’ fates, as the detainees are in CECOT
“pending the United States’ decision on their long-term disposition.”
See Matthew Lee & Regina Garcia Cano, Trump Officials Secretly
Deported Venezuelans and Salvadorans to a Notorious Prison in El
Salvador, ASSOCIATED PRESS (Mar. 15, 2025),
https://apnews.com/article/trump-deportations-salvador-tren-aragua-64e72142a171ea57c869c3b35eeecce7.
Unlike Abrego Garcia, for whom no reason exists to detain him,
Defendants transported many individuals who had been detained in the
United States while awaiting immigration proceedings.14
Yet, despite Defendants’ power to transfer those awaiting hearings to
CECOT for a “good price,” Defendants disclaim any ability to secure
their return, including Abrego Garcia. ECF No. 11 at 11. Surely,
Defendants do not mean to suggest that they have wholesale erased the
substantive and procedural protections of the INA in one fell swoop by
dropping those individuals in CECOT without recourse. Instead, the
record reflects that Defendants have “outsource[d] part of the [United
States’] prison system.”15
See also U.S. Dep't of Homeland Sec., How It's Going, DHS,
https://www.dhs.gov/medialibrary/assets/video/59108 (last visited Apr.
4, 2025) (quoting Defendant Noem: “This facility is one of the tools in
our toolkit that we will use”).”16
Thus, just as in any other contract facility, Defendants can and do
maintain the power to secure and transport their detainees, Abrego
Garcia included.
In the end, Defendants’ redressability argument
rings hollow. As their counsel suggested at the hearing, this is not
about Defendants’ inability to return Abrego Garcia, but their lack of
desire.
THE COURT: Can we talk about, then, just very practically, why can't the United States get Mr. Abrego Garcia back?
MR.
REUVENI: Your Honor, I will say, for the Court's awareness, that when
this case landed on my desk, the first thing I did was ask my clients
that very question. I've not received, to date, an answer that I find
satisfactory.
Hr'g Tr., Apr. 4, 2025, at 35–36. See also id. at 50
(counsel seeking 24 hours to persuade Defendants to secure Abrego
Garcia's return). Flat refusal, however, does not negate redressability.
The record reflects that the remedy is available. Abrego Garcia
maintains standing to sue.
C. Section 1252(g) of the INA Does Not Strip the Court's Jurisdiction in this Case
Lastly,
Defendants argue that 8 U.S.C. § 1252(g) (“Section 1252(g)”) deprives
the Court of jurisdiction to review this matter. The statute reads:
Except
as provided in this section and notwithstanding any other provision of
law (statutory or non-statutory), including section 2241 of Title 28, or
any other habeas corpus provision, and sections 1361 and 1651 of such
title, no court shall have jurisdiction to hear any cause or claim by or
on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute
removal orders against any alien under this chapter.
8 U.S.C. § 1252(g).
Defendants
concede that Reno v. American-Arab Anti-Discrimination Committee, 525
U.S. 471, 482 (1999), commands a narrow construction of Section 1252(g),
limiting application solely to the Attorney General's exercise of
lawful discretion to (1) commence proceedings; (2) adjudicate cases; or
(3) execute removal orders. Id. (“It is implausible that the mention of
three discrete events along the road to deportation was a shorthand way
of referring to all claims arising from deportation proceedings.”). See
also Bowrin v. U.S. I.N.S., 194 F.3d 483, 488 (4th Cir. 1999) (noting
that Section 1252(g) only stripped federal courts of jurisdiction to
review the “Attorney General's decision to exercise her discretion to
initiate or prosecute the specific stages in the deportation process.”).
As the Reno Court explained, “there was good reason for Congress to
focus special attention upon, and make special provision for, judicial
review of the Attorney General's discrete acts ․ which represent the
initiation or prosecution of various stages in the deportation process.”
Id. (emphasis added). Thus, this Court is deprived of jurisdiction only
for the discretionary decisions made concerning the three stages of the
deportation process. See Bowrin v. U.S. INS, 194 F.3d 483, 488 (4th
Cir. 1999); U.S. v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004);
Coyotl v. Kelly, 261 F. Supp. 3d 1328, 1339–1341 (N.D. Ga. 2017); Gondal
v. U.S. Dep't of Homeland Sec., 343 F. Supp. 3d 83, 92 (E.D.N.Y. 2018).
But see Silva v. United States, 866 F.3d 938 (8th Cir. 2017).
Defendants
press that Section 1252(g) precludes jurisdiction here because the
claims concern Defendants’ “execution of his removal order.” ECF No. 11
at 13. The argument fails in both fact and law.
First, the Court
cannot credit that Defendants removed Abrego Garcia pursuant to an
“executed removal order” under the INA. Defendants have not produced any
order of removal as to Abrego Garcia, executed or otherwise, or
submitted any proof that they had removed him pursuant to one. Hr'g Tr.
Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of
the record); see also id. at 22 (counsel confirming that “the removal
order” from 2019 “cannot be executed” and is not part of the record).
Nor have any other corollary documents surfaced, such as a “warrant for
removal/deportation” customarily served on an alien as part of a lawful
deportation or removal. Id.17
From this, the Court cannot conclude that Abrego Garcia was spirited to
CECOT on an “executed removal order” such that Section 1252(g) is
implicated.
Second, even if there were an executed order of
removal for Abrego Garcia, his claims do not seek review of any
discretionary decisions. He is not asking this Court to review the
wisdom of the Attorney General's lawful exercise of authority. Rather,
he asks that the Court determine whether his return to El Salvador
violated the INA. In this circumstance, the Fourth Circuit has spoken.
Bowrin
v. U.S. INS, 194 F.3d 483 (4th Cir. 1999) made plain that review of
agency decisions involving pure questions of law “do not fall into any
of the three categories enumerated in § 1252(g).” Bowrin, 194 F.3d at
488. Section 1252(g), the Bowrin Court emphasized, “does not apply to
all claims arising from deportation proceedings, because § 1252(g)
stripped the federal courts of jurisdiction only to review challenges to
the Attorney General's decision to exercise her discretion to initiate
or prosecute these specific stages in the deportation process.” Id.
(citing American-Arab Anti-Discrimination Committee, 525 U.S. at 482)
(emphasis added). See also Hovsepian, 359 F.3d at 1155 (“The district
court may consider a purely legal question that does not challenge the
Attorney General's discretionary authority, even if the answer to that
legal question ․ forms the backdrop against which the Attorney General
later will exercise discretionary authority.”); Siahaan v. Madrigal,
Civil No. PWG-20-02618, 2020 WL 5893638, at *5 (D. Md. Oct. 5, 2020)
(“To insist, as the Respondents do, that this Court lacks jurisdiction
because of § 1252(g) to determine the purely legal questions of whether
his removal under these circumstances violates the statutory and
constitutional provisions that his habeas petition has raised runs
contrary to the consistent rulings of the Supreme Court for at least
twenty years.”); Coyotl, 261 F. Supp. 3d at 1339–41. Accordingly, and
after exhaustive analysis, Bowrin concluded that “absent express
congressional intent ․ to eliminate the general federal habeas corpus
review pursuant to 28 U.S.C.A. § 2241, the remedy remains available to
Bowrin and other aliens similarly situated.” Bowrin, 194 F.3d at 489
(collecting cases).
Like Bowrin, Abrego Garcia presents to this
Court a pure question of law: whether Defendants exceeded their
authority in returning him to El Salvador, in violation of the 8 U.S.C. §
1231(b)(3)(A). Hr'g Tr., Apr. 4, 2025, at 24. In this Court's view, no
plainer question of statutory interpretation could be presented. Thus,
Section 1252(g) does not deprive the Court of jurisdiction over the
claims.
In sum, the Court retains jurisdiction over this case. And
even though Defendants concede that if this Court retains jurisdiction,
Abrego Garcia prevails on the merits of his preliminary injunction,18 for the benefit of all, the Court briefly addresses why this concession makes sense.
III. Merits of Preliminary Injunctive Relief
A
preliminary injunction is an extraordinary remedy that should be
granted only upon “a clear showing that the plaintiff is entitled to
relief.” Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir.
2011) (internal quotation marks omitted) (quoting Winter v. Natural Res.
Def. Council, 555 U.S. 7, 22 (2008)). Generally, injunctions are sought
to “preserve the status quo so that a court can render a meaningful
decision after a trial on the merits.” Hazardous Waste Treatment Council
v. State of S.C., 945 F.2d 781, 788 (4th Cir. 1991) (quotation
omitted); see also United States ex rel. Rahman v. Oncology Assocs.,
P.C., 198 F.3d 489, 498 (4th Cir. 1999). By contrast, injunctions which
alter the status quo, known as “mandatory injunctions,” are highly
disfavored, Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980), and
should be granted only when “necessary both to protect against
irreparable harm in a deteriorating circumstance created by the
defendant and to preserve the court's ability to enter ultimate relief
on the merits of the same kind,” In re Microsoft Corp. Antitrust Litig.,
333 F.3d 517, 526 (4th Cir. 2003), abrogation on other grounds
recognized in Bethesda Softworks, LLC v. Interplay Entm't Corp., 452 F.
App'x 351, 353–54 (4th Cir. 2011); see also Pierce v. N. Carolina State
Bd. of Elections, 97 F.4th 194, 209 (4th Cir. 2024). Abrego Garcia
requests relief designed to retore the status quo ante, or the “last
uncontested status between the parties which preceded the controversy.”
League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224,
236 (4th Cir. 2014). That is, to return him to where he was on March 12,
2025, before he was apprehended by ICE and spirited away to CECOT.
To
receive the benefit of injunctive relief, Abrego Garcia must
demonstrate by preponderant evidence four well-established factors: (1) a
likelihood of success on the merits; (2) a likelihood of suffering
irreparable harm in the absence of preliminary relief; (3) that the
balance of equities tips in its favor; and (4) that issuing the
injunction is in the public interest. See Winter, 555 U.S. at 20. The
Court considers each factor separately.
A. Likelihood of Success of the Merits
As
to likelihood of success on the merits, Abrego Garcia need only
demonstrate a likelihood of success on one cause of action. See Mayor
& City Council of Baltimore v. Azar, 392 F. Supp. 3d 602, 613 (D.
Md. 2019). Defendants concede success as to Count I, their violation of
the INA. The Court agrees.
An alien “may seek statutory
withholding under [8 U.S.C.] § 1231(b)(3)(A), which provides that ‘the
Attorney General may not remove an alien to a country if the Attorney
General decides that the alien's life or freedom would be threatened in
that country because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion.’ ”
Johnson v. Guzman Chavez, 594 U.S. 523, 530 (2021)). “If an alien is
granted withholding-only relief, DHS may not remove the alien to the
country designated in the removal order unless the order of withholding
is terminated. 8 C.F.R. §§ 208.22, 1208.22. The withholding of removal
is country-specific and more stringent than other forms of relief from
deportation because once the noncitizen “establishes eligibility for
withholding of removal, the grant is mandatory.” Amaya v. Rosen, 986
F.3d 424, 427 (4th Cir. 2021), as amended (Apr. 12, 2021) (quoting
Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353–54 (4th Cir. 2006)).
Accordingly,
pursuant to Section 1231(b)(3)(A), once an alien is granted withholding
of removal, the Defendants “may not” remove the alien to the identified
country. It is undisputed that “Abrego Garcia, was removed to El
Salvador despite a grant of withholding of removal to that country.” ECF
No. 11. Even more disturbing, the Defendants concede that it cannot
even produce the documents which reflect any authority, lawful or
otherwise, to transfer him to El Salvador. Thus, the record plainly
reflects that Defendants’ forced migration to El Salvador violates
Section 1231(b)(3)(A). He is guaranteed success on the merits of Count
I.
Next as to Count II, the procedural due process claim, Abrego
Garcia alleges that Defendants forced removal to El Salvador without any
process constitutes a clear constitutional violation. This the
Defendants also concede. But for completeness, the Court briefly
addresses why the parties are correct. To succeed on a Fifth Amendment
due process claim, the plaintiff must show that he possesses “a
constitutionally cognizable life, liberty, or property interest”; that
he was deprived of that interest because of “some form of state action”;
and “that the procedures employed were constitutionally inadequate.”
Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013).
Abrego
Garcia has demonstrated that he had a liberty interest by virtue of the
INA in avoiding forcible removal to El Salvador. “In order for a
statute to create a vested liberty or property interest giving rise to
procedural due process protection, it must confer more than a mere
expectation (even one supported by consistent government practice) of a
benefit.” Mallette v. Arlington County Employees’ Supplemental Ret. Sys.
II, 91 F.3d 630, 635 (4th Cir. 1996). There must be entitlement to the
benefit as directed by statute, and the statute must “ ‘act to limit
meaningfully the discretion of the decision-makers.’ ” Id. (quoting
Board of Pardons v. Allen, 482 U.S. 369, 382 (1987) (O'Connor, J.,
dissenting)).” Here, the statutory scheme which conferred withholding of
removal also entitled Abrego Garcia to not be returned to El Salvador
absent process. Further, the statutes at issue eliminated the discretion
altogether. Thus, this element is easily met.
As to the third
element, Defendants deprived Abrego Garcia of this right without any
procedural protections due to him. Indeed, nothing in the record
suggests that Abrego Garcia received any process at all. Accordingly, he
is likely to succeed on the merits of Count II.
Last, and for
similar reasons, Abrego Garcia is likely to succeed on the merits of the
APA claim, Count III. The APA mandates that “agency action must be set
aside if the action was ‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law’ or if the action failed to meet
statutory, procedural, or constitutional requirements.” Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414(1971), abrogated by
Califano v. Sanders, 430 U.S. 99; 5 U.S.C. § 706(2); W. Virginia v.
Thompson, 475 F.3d 204, 209 (4th Cir. 2007). An agency action is
arbitrary and capricious when the agency disregards rules or regulations
still in effect or departs from a prior policy without “articulat[ing] a
satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” See Sierra Club v. Dep't
of the Interior, 899 F.3d 260, 293 (4th Cir. 2018). In short, an agency
may not “depart from a prior policy sub silentio or simply disregard
rules that are still on the books.” FCC v. Fox Television Stations,
Inc., 556 U.S. 502 (2009).
The Defendants do not dispute that its
expulsion of Abrego Garcia to El Salvador constitutes a final agency
action. Nor do they dispute that the decision was without any lawful
authority whatsoever. Nor have Defendants articulated any rationale for
taking such action. Their action was lawless, and thus in violation of
the APA.
Abrego Garcia, as all who have touched this case
recognize, is likely to succeed on the merits of these claims. The first
Winter factor is thus satisfied.
B. Irreparable Harm
Regarding
the second Winter factor, Abrego Garcia must show that he will be
irreparably harmed in the absence of preliminary injunctive relief. See
Winter, 555 U.S. at 20. This standard requires more than the mere
“possibility” of irreparable harm; rather, the plaintiff must
“demonstrate that irreparable injury is likely in the absence of an
injunction.” Id. at 21.
Obviously, “the risk of torture, beatings,
and even death clearly and unequivocally supports a finding of
irreparable harm.” J.G.G., 2025 WL 890401, at *16, citing United States
v. Iowa, 126 F.4th 1334, 1352 (8th Cir. 2025) (torture); Leiva-Perez v.
Holder, 640 F.3d 962, 970 (9th Cir. 2011) (physical abuse). Perhaps this
is why Defendants anemically suggested that Abrego Garcia failed to
show he would be “harmed” in CECOT, but then abandoned that contention
at the preliminary injunction hearing. Certainly as to Abrego Garcia,
the IJ found that returning him to El Salvador at all would likely
subject him to persecution at the hands of Barrio 18, to include the
risk of death. ECF No. 1-1 at 7.
More fundamentally, Defendants do
not dispute that their placement of Abrego Garcia at CECOT invites this
very harm. Defendants effectuated his detention in one of the most
notoriously inhumane and dangerous prisons in the world. Defendants even
embrace that reality as part of its well-orchestrated mission to use
CECOT as a form of punishment and deterrence. ECF No. 10-5 at 4
(Defendant Noem announcing while standing in front of caged prisoners at
CECOT “if an immigrant commits a crime, this is one of the consequences
you could face ․ You will be removed and you will be prosecuted.”).
But
particular to Abrego Garcia, the risk of harm shocks the conscience.
Defendants have forcibly put him in a facility that intentionally mixes
rival gang members without any regard for protecting the detainees from
“harm at the hands of the gangs.” ECF No. 10-3 at 15. Even worse,
Defendants have claimed—without any evidence—that Abrego Garcia is a
member of MS-13 and then housed him among the chief rival gang, Barrio
18. Not to mention that Barrio 18 is the very gang whose years’ long
persecution of Abrego Garcia resulted in his withholding from removal to
El Salvador. To be sure, Abrego Garcia will suffer irreparably were he
not accorded his requested relief. He has satisfied the second Winter
factor.
C. Balance of Equities and Public Interest
The Court
considers the last two factors in tandem because “the balance of the
equities and the public interest ․ ‘merge when the Government is the
opposing party.’ ” Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d
214, 242 (D. Md. 2020) (quoting Nken v. Holder, 556 U.S. 418, 435
(2009)). As to the balance of the equities, “courts ‘must balance the
competing claims of injury and must consider the effect on each party of
the granting or withholding of the requested relief.’ ” Winter, 555
U.S., at 24 (quoting Amoco Prod. Co. v. Gambell, AK, 480 U.S. 531, 542
(1987)). When considering the public interest, the Court “should pay
particular regard for the public consequences in employing the
extraordinary remedy of injunction.” Id. (quoting Weinberger v.
Romero-Barcelo, 456 U.S. 305, 312 (1982)). The Court is mindful that it
may not collapse this inquiry with the first Winter factor. See USA Farm
Lab., Inc. v. Micone, No. 23-2108, 2025 WL 586339, at *4 (4th Cir. Feb.
24, 2025) (explaining that it is “circular reasoning” to argue that a
government “program is against the public interest because it is
unlawful” and that such argument “is nothing more than a restatement of
their likelihood of success”).
“Of course there is a public
interest in preventing aliens from being wrongfully removed,
particularly to countries where they are likely to face substantial
harm.” Nken, 416 U.S. at 436. Equally important, the public remains
acutely interested in “seeing its governmental institutions follow the
law․” Roe v. Dep't of Def., 947 F.3d at 230–31 (4th Cir. 2020) (internal
quotation marks and citation omitted). The absence of injunctive relief
places this interest in greatest jeopardy, as demonstrated by Abrego
Garcia's experience over the past three weeks.
Defendants seized
Abrego Garcia without any lawful authority; held him in three separate
domestic detention centers without legal basis; failed to present him to
any immigration judge or officer; and forcibly transported him to El
Salvador in direct contravention of the INA. Once there, U.S. officials
secured his detention in a facility that, by design, deprives its
detainees of adequate food, water, and shelter, fosters routine
violence; and places him with his persecutors, Barrio 18. In short, the
public interest and companion equities favor the requested injunctive
relief.19
IV. Conclusion
Based
on the foregoing, the Court retains jurisdiction to hear this case.
Abrego Garcia has also demonstrated that he is entitled to the
injunctive relief sought. The Court's April 4, 2025 Order thus remains
in full force and effect.20
FOOTNOTES
1. Louis
Casiano, U.S. Paid El Salvador to Take Venezuelan Tren de Aragua
Members for ‘Pennies on the Dollar,’ White House Says, FOX NEWS (Mar.
26, 2025),
https://www.foxnews.com/politics/us-paid-el-salvador-take-venezuelan-tren-de-aragua-members-pennies-dollar-white-house-says.
2. Defendants
did not assert—at any point prior to or during the April 4, 2025,
hearing—that Abrego Garcia was an “enemy combatant,” an “alien enemy”
under the Alien Enemies Act, 50 U.S.C. § 21, or removable based on
MS-13's recent designation as a Foreign Terrorist Organization under 8
U.S.C. § 1189. Invoking such theories for the first time on appeal
cannot cure the failure to present them before this Court. In any event,
Defendants have offered no evidence linking Abrego Garcia to MS-13 or
to any terrorist activity. And vague allegations of gang association
alone do not supersede the express protections afforded under the INA,
including 8 U.S.C. §§ 1231(b)(3)(A), 1229a, and 1229b.
3. ECF
No. 11-3 at 3 (“Through administrative error, Abrego-Garcia was removed
from the United States to El Salvador. This was an oversight ․”); Hr'g
Tr., Apr. 4, 2025, 19:11–13 (Mr. Reuveni: “This person should -- the
plaintiff, Abrego Garcia, should not have been removed. That is not in
dispute.”).
4. ECF No. 1-4; ECF No. 10-2; ECF No. 10-3.
5. The
“evidence” against Abrego Garcia consisted of nothing more than his
Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation
from a confidential informant claiming he belonged to MS-13's “Western”
clique in New York—a place he has never lived. ECF No. 31.
6. A
decision by an IJ becomes final “upon waiver of appeal or upon
expiration of the time to appeal if no appeal is taken within that
time.” 8 C.F.R. § 1003.39. The deadline for filing an appeal to the
Board of Immigration Appeals is 30 days from the date of the decision.
See 8 C.F.R. § 1003.38(b). Once final, a grant of withholding of removal
prohibits removal to the country of feared persecution absent formal
reopening and termination of that protection. See 8 C.F.R. § 208.24.
7. Female
detainees were returned to the United States because the prison would
not accept them. See, e.g., J.G.G. v. Trump, No. 1:25-cv-766 (JEB), ECF
No. 55-1.
8. It
is unclear what qualifies as a “convicted criminal” under the terms of
the agreement, but Abrego Garcia has not been convicted of any crime.
9. Vasquez
Sura and A.A.V.’s claims are not the subject of this decision, and so
for clarity, the Court refers solely to Plaintiff Abrego Garcia.
10. In
this context, habeas claims need not be brought to the exclusion of all
other claims. See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 185–186
(D.D.C. 2015) (noting that “APA and habeas claims may coexist” where
aliens challenge their detention in violation of removal procedures).
11. See
Matthew Lee & Regina Garcia Cano, Trump Officials Secretly Deported
Venezuelans and Salvadorans to a Notorious Prison in El Salvador,
ASSOCIATED PRESS (Mar. 15, 2025),
https://apnews.com/article/trump-deportations-salvador-tren-aragua-64e72142a171ea57c869c3b35eeecce7.
12. Louis
Casiano, U.S. Paid El Salvador to Take Venezuelan Tren de Aragua
Members for ‘Pennies on the Dollar,’ White House Says, FOX NEWS (Mar.
26, 2025),
https://www.foxnews.com/politics/us-paid-el-salvador-take-venezuelan-tren-de-aragua-members-pennies-dollar-white-house-says.
13. Defendants
also urged this Court to follow Kiyemba v. Obama, 561 F.3d 509 (D.C.
Cir. 2009), wherein the United States Court of Appeals for the District
of Columbia held that a claim could not sound in habeas where the
plaintiff sought relief to avoid “torture” in the receiving country. The
Kiyemba Court held that because a “district court may not question the
Government's determination that that a potential recipient country is
not likely to torture a detainee,” the habeas claims fail on the merits.
Id., citing Munaff, 553 U.S. at 514. That is not this. Defendants have
already determined that Abrego Garcia must not be returned to El
Salvador because he had established under the INA that he faces
persecution from Barrio18. ECF No. 1-1. Defendants remain bound to that
decision just as much today as they were when they decided not to appeal
that determination. Defendants’ violation of the INA in detaining
Abrego Garcia in El Salvador does not implicate United States’ policy
decisions as to El Salvador's possible propensity to violate the
Convention Against Torture writ large. ECF No. 11 at 16 (this Court
should defer to the Defendants’ determination that Abrego Garcia will
not likely be tortured or killed in El Salvador, this implicating
Executive policy decisions). Accordingly, Kiyemba does not counsel a
different outcome.
14. See,
e.g., 25-cv-766-JEB, ECF No. 55-1 (Declaration of S.Z.F.R., a female
detainee formerly held at Webb County Detention Center in Laredo, Texas
awaiting a merits hearing on her asylum claims was part of the mass
transport to CECOT but ultimately returned to the United States because
CECOT would not accept females); ECF 67-10 (Declaration of immigration
attorney for Jose Hernandez Romero, who had been detained at Otay Mesa
Detention Center pending his asylum hearing at time was transported to
CECOT); ECF No. 67-11 (Declaration of immigration attorney for detainee,
G.T.B., a native of Venezuela who had been detained at Aurora Contract
Detention Facility awaiting deportation proceedings when transported to
CECOT without warning. ICE ultimately returned her to the United
States); ECF No. 67-11 (Declaration of immigration attorney for
detainee, Jerce Reyes Barrios, who had been housed at Otay Mesa
Detention Center awaiting hearing on protected status, prior to
transport to CECOT); ECF No. 67-14 (Declaration of immigration attorney
for detainee, E.V., who had been housed at Moshannon Valley Processing
Center in Philipsburg, Pennsylvania awaiting hearing on final order of
removal when transported to CECOT); ECF No. 67-16 (Declaration of
immigration attorney for detainee J.A.B.V., who had been detained
domestically prior to his removal hearing scheduled for April 7, 2025
was transported to CECOT); ECF No. 67-17 (Declaration of immigration
attorney for detainee, L.G., who had been detained at Moshannon Valley
Processing Center in Philipsburg, Pennsylvania, awaiting removal
proceedings prior to transfer to CECOT).
15. Nayib Bukele (@nayibbukele), X (Mar. 19, 2025, 8:12 PM), https://x.com/nayibbukele/status/1886606794614587573
16. U.S.
Dep't of Homeland Sec., How It's Going, DHS,
https://www.dhs.gov/medialibrary/assets/video/59108 (last visited Apr.
4, 2025) (quoting Defendant Noem: “This facility is one of the tools in
our toolkit that we will use”).
17. See sample warrant for removal at https://www.ice.gov/sites/default/files/documents/Document/2017/I-205_SAMPLE.PDF
18. See
Hr'g Tr., Apr. 4., 2025, at 25:10–14 (Mr. Reuveni: “if you're not
buying our jurisdictional arguments, like, we're done here ․ We have
nothing to say on the merits.”).
19. Defendants
suggested in their response that the public retains an interest in not
returning Abrego Garcia to the United States because “he is a danger to
the community,” ECF No. 11, only to abandon this position at the
hearing. Again, with good reason. No evidence before the Court connects
Abrego Garcia to MS-13 or any other criminal organization.
20. For these same reasons, the Court denies Defendants’ Motion to Stay the Court's April 4, 2025 Order. ECF No. 29.
Paula Xinis, United States District Judge
