Terrorism Confinement Center, El Salvador. La Prensa Gráfica/Wikimedia Commons.

Kilmar Abrego Garcia was driving home from work with his young son when US agents arrested him, claiming his immigration status had changed. Within days, he was summarily deported to El Salvador.

But Abrego Garcia, a Salvadorean migrant, had been a legal US resident with a court order barring his return to El Salvador due to threats against him. Officials still accused him, without solid evidence, of ties to the Salvadorian MS-13 gang, a designated foreign terrorist organisation in the US.

A lawsuit brought by Abrego Garcia’s American citizen wife quickly went to the Supreme Court, which ordered the Trump administration to ‘facilitate’ the deportee’s return to the US. Officials have described the deportation of Abrego Garcia as an ‘administrative error’ but the Trump administration initially refused to bring him back, saying it’s up to El Salvador’s government to return him. 

El Salvador’s President Nayib Bukele dismissed the Supreme Court’s intervention. ‘The question is preposterous. How can I smuggle a terrorist into the United States?’ Bukele said, seated alongside President Trump during a White House meeting in mid-April.

Abrego Garcia’s case highlights the clash between President Trump and the US judiciary as the administration pursues its mass deportation drive. The Salvadorean was deported alongside dozens of Venezuelans who likewise were given no chance to dispute their removal.

The Trump administration claimed that many of the Venezuelans were members of the transnational criminal gang Tren de Aragua, basing this allegation largely on their tattoos and clothing. The men were sent to a maximum-security prison in El Salvador despite a US judge’s emergency order temporarily prohibiting their removal. 

US District Judge James Boasberg had ordered two aeroplanes carrying the Venezuelans returned to the US. Administration officials didn’t comply. Judge Boasberg has now begun contempt proceedings, which the administration said it would contest. In such proceedings, the judge would seek to identify who in the Trump administration refused to heed his order to return the aeroplanes and refer them for criminal prosecution. An appeals court has placed those proceedings on hold pending a ruling on whether Judge Boasberg can rightfully continue.

‘In both of those cases and some others now, the administration has arguably defied the judges when they have been given an order,’ says Siskind, Founding Partner of Siskind Susser in Tennessee. On 17 April, US Fourth Circuit Appeals Court Judge J Harvie Wilkinson penned a stern rebuke of the Trump administration in an opinion in the Abrego Garcia case. ‘The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,’ Wilkinson wrote.

In early April, the Supreme Court ruled that if the Trump administration intends to use the US Alien Enemies Act of 1798 – as it did in the Venezuelan case – deportees must be afforded due process to challenge their removal under the law.

President Trump has refused to yield. ‘We’re getting [undocumented migrants] out […] and a judge can’t say, “No, you have to have a trial,”’ the President said in Oval Office remarks to the media on 23 April.

But both US and international law generally prohibit the return of refugees to countries where they would face risks of persecution or violence. ‘To the extent United States laws and procedures apply, due process is a bedrock principle and must be respected. That is where the substantive claim is proved or disproved,’ says Steven Richman, Chair of the IBA Bar Issues Commission. ‘Anything else is right out of Alice in Wonderland, where the Red Queen says, “Sentence first – verdict afterwards” at the trial of the Knave of Hearts.’

Notably, all nine justices of the US Supreme Court supported the 10 April ruling in the Abrego Garcia case, with Justice Sonia Sotomayor authoring a statement – signed by the Court’s three liberal judges – which read 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.’ Richman, who’s a member of Clark Hill in New Jersey, says this is the ‘appropriate answer. There should be evidence submitted, a proper hearing with due process, and a reasoned result. We call this the adversary system.’

President Trump’s defiance of court orders is raising concerns of a constitutional crisis as the US system of checks and balances is tested. ‘At a minimum,’ Trump’s team exhibited ‘a callous disregard’ for Abrego Garcia’s legal protections, says Lucas Guttentag, an expert in immigration law and a professor at the law schools of Stanford and Yale. ‘More fundamentally, it is just one more example of the administration wantonly abandoning a foundational principle of the rule of law and our Constitution, namely that the executive branch itself has an affirmative duty to ensure that the laws are faithfully executed,’ he adds.

Indeed, due process is one of the core pillars of American law and draws from English common law. As the pre-eminent 18th century English jurist William Blackstone wrote, ‘better that ten guilty persons escape, than that one innocent suffer.’

Aziz Huq, a professor at the University of Chicago Law School, says: ‘It’s clear this Trump administration is playing fast and loose, not just with the facts, but also with the law.’