High-Stakes Judiciary Actions Concerning the Deportation of a Gay Man to a U.S. Prison

The decision added another flashpoint to the high-stakes battle over President Trump’s deportation policies playing out across the federal courts. A string of judges have said that the administration is guilty of lacking due process or carrying out deportations that exceed the president’s authority. Mr. Trump has questioned the power of the courts to hear such cases and called for the impeachment of judges who rule against him.

The Supreme Court ruled that the White House couldn’t retrieve Abrego when it mistakenly deported him from a notorious Salvadoran prison. Both the White House and the El Salvadoran president have said they are powerless to return him. The administration argued that releasing information in open court about Abrego may endanger national security, and that releasing it in private would be worse.

In Mr. Abrego Garcia’s case, the Supreme Court upheld a lower court’s order for the government to “facilitate” his return but stopped short of endorsing the judge’s call to “effectuate” it. The government has seized on that distinction, saying it lacks the authority to return Mr. Abrego Garcia because El Salvador maintains custody over him. Mr. Trump said that he could arrange his release with a phone call.

Judge Murphy acknowledged the distinction and the constitutional limitations on the judiciary’s ability to direct the conduct of the executive branch overseas. But the word “facilitate,” he wrote, “should carry less baggage” in O.C.G.’s case because he “is not held by any foreign government.”

A judge’s order in the US protected a man from being returned to his home country after he came out as gay. But the U.S. put him on a bus and sent him to Mexico instead, a removal that U.S. District Judge Brian Murphy found likely “lacked any semblance of due process.”

“No one has ever suggested that O.C.G. poses any sort of security threat,” Murphy wrote. The banal horror of a man being loaded onto a bus and sent back to a country where he was just raped and kidnapped is the only special facts presented in this case.

In his Friday ruling, Murphy nodded to the dispute over the verb “facilitate” in that case and others, saying that returning O.C.G. to the U.S. is not that complicated.