138. Abrego Garcia, Constructive Custody, and Federal Judicial Power

Federal courts don't have jurisdiction over foreign prisons. That doesn't mean that they're powerless when the U.S. government wrongly removes someone from the United States.

Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

It’s hard to keep up with the flood of court-related news stories these days. But I wanted to write this morning to flag a remarkable (and time-sensitive) ruling yesterday by Judge Paula Xinis (a federal judge in the District of Maryland), ordering the U.S. government to bring back to the United States Kilmar Armando Abrego Garcia—a Salvadoran national whom the Trump administration wrongly removed from the United States (due to what it claims was an “administrative error”) on March 15, and who has been detained at the notorious “CECOT” mega-jail in Tecoluca, El Salvador ever since. Judge Xinis ordered the government to effectuate Abrego Garcia’s return to the United States by 11:59 p.m. this Monday, April 7. The government has already appealed her ruling to the Fourth Circuit.

When asked about Judge Xinis’s ruling on Friday, White House Press Secretary Karoline Leavitt responded that “We suggest the Judge contact [Salvadoran] President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” Leaving aside the Trump administration’s refusal to take any responsibility for the consequences of its own error, that obnoxious retort is true so far as it goes. The problem is that it just doesn’t go very far. Federal courts may not have the power to compel the release of an individual from a foreign prison, but they unquestionably have the power to order the U.S. government to take whatever steps it can to effectuate the same result. And it seemed worth writing a (short) post explaining why.

The statute that authorizes the federal courts to review petitions for writs of habeas corpus has, as its jurisdictional predicate, the idea that the petitioner is in “custody” that is, in some way, in violation of U.S. law. And although the capacious view of “custody” endorsed by the Supreme Court in 1963 has been narrowed somewhat, it is still settled law that one can be in “custody” without being in the respondent’s “actual, physical custody,” either because they remain subject to conditions of release (like parole), or because they’re being held by someone other than the respondent, but at the respondent’s behest. This idea has become known in the case law as “constructive custody.” As the Sixth Circuit put it in 1979, “It is enough that the imprisoning sovereign is the respondent’s agent; that his liberty is restrained by the respondent’s parole conditions; or that he can point to some continuing collateral disability which is the result of the respondent’s action.”

Consider the case of Ahmed Omar Abu Ali, a U.S. citizen who was being held in Saudi Arabia in 2004. Abu Ali’s parents brought a habeas petition in the D.C. federal district court (naming Attorney General Ashcroft as the respondent), alleging that, although their son was in a Saudi prison, he was being held (and interrogated) only at the behest of the U.S. government as a way of avoiding judicial review in the United States. Judge Bates ruled that, if those allegations were valid, he would have jurisdiction over the habeas petition—not because he could order the Saudi government to release one of its own prisoners, but because he could order the U.S. government to cease doing … whatever it was doing. Bates thus ordered jurisdictional discovery into the extent of the U.S. government’s involvement—at which point, the U.S. government … mooted the case (by indicting Abu Ali on criminal charges and promptly transferring him to U.S. custody in Virginia—indirectly vindicating the central allegation in his habeas petition).¹

The Abu Ali case is evocative, but it’s no outlier. Every first-year Civil Procedure student who suffers through “personal jurisdiction” learns that courts can use their power over defendants who are in their jurisdiction to regulate conduct that occurs elsewhere. And so the question in the Abrego Garcia case is not whether Judge Xinis can order President Bukele to do anything (she can’t); it’s whether and to what extent Secretary Noem, who certainly is subject to Judge Xinis’s jurisdiction, can take steps to effectuate Abrego Garcia’s return. If Noem swears under oath that she’s powerless, that would be one thing. But (1) that would be more than a little difficult to believe; and (2) that hasn’t happened yet.

This issue has come up before in … less charged … removal proceedings. In a case my good friend and Jenner & Block (yay Jenner!) partner Lindsay Harrison had brought to the Supreme Court in 2009,² the Solicitor General had represented that:

By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. § 1182(d)(5) if necessary, and according them the status they had at the time of removal.

It turns out that the government … overstated things. As then-Deputy Solicitor General Michael Dreeben clarified in a 2012 letter, “without providing additional detail about the government’s approach to effectuating return and restoring status, the statement that relief was accorded ‘[b]y policy and practice’ suggested a more formal and structured process than existed at the time.” But as the Dreeben letter noted, the government responded by creating a more formal and structured process—as reflected in a 2012 directive adopted by Immigration and Customs Enforcement Director John Morton (that, near as I can tell, is still on the books). In other words, the government already has a procedure in place for taking steps to return at least some individuals who have been wrongly removed—or even those who haven’t, but whose presence in the United States is necessary to fully adjudicate any pending legal challenges they may have to their removal.

Thus, not only do federal courts have the formal authority to order federal respondents to take steps to effectuate the return of individuals who have been wrongly removed from the United States, but the federal government has a policy respecting how it can and should do so in at least some cases. I don’t mean to overstate things; it’s at least possible that there’s nothing the federal government can do at this point to get Abrego Garcia back. But again, given the circumstances of this case, that’s difficult to believe—at least where things stand today.

And at 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, as Judge Xinis attempted to in yesterday’s ruling.

Hopefully, her appellate colleagues agree.

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1. Indeed, “constructive custody” in war on terrorism detention cases was the subject of Karen (my better half)’s student law review note.

2. I was co-counsel for the petition in Nken. But obviously, nothing in this post necessarily represents the views of my co-counsel or our client.