Court Rebukes Government in Sharp Ruling Over Deportation to El Salvador
Fourth Circuit Warns Against Executive Overreach in Detention of Immigrant Deported in Violation of Withholding Order
April 17, 2025
Richmond, Va. — In a blistering opinion issued Thursday, a panel of the United States Court of Appeals for the Fourth Circuit denied the federal government’s request for an emergency stay and writ of mandamus in a case involving the contested deportation of a man previously ordered protected from removal. The decision, authored by Judge J. Harvie Wilkinson III1, took direct aim at what the court characterized as a “shocking” assertion of executive power: the right to detain individuals abroad without due process and then disavow any responsibility for their return.
The case centers on Kilmar Armando Abrego Garcia, a Salvadoran national and one-time gang member, who had been granted withholding of removal—a form of legal protection for individuals at risk of persecution or torture if returned to their home country. Despite that protection, the government deported him to El Salvador earlier this year, later admitting that the removal had been a “mistake.”
That admission did not, however, lead to his return. Instead, the government argued that since Mr. Abrego Garcia is no longer in U.S. custody, courts have no jurisdiction and the Executive Branch bears no further duty beyond “removing domestic barriers” to his reentry. The court roundly rejected that claim.
We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.
“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process,” Judge Wilkinson wrote. “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
The ruling lands amid a growing national debate over the scope of presidential authority in matters of immigration and national security. In recent weeks, President Trump has hinted that his administration is open to expanding deportation practices beyond noncitizens—a claim the court took seriously enough to address directly.
“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?” the opinion asked.
The government contended that it had complied with the Supreme Court’s recent instruction to “facilitate” Abrego Garcia’s return. But the court dismissed this interpretation as “passive,” arguing that “facilitate” requires tangible, proactive steps. “The plain and active meaning of the word cannot be diluted,” the opinion stated, adding that the Executive had “not so subtly spurned” a district court’s order.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The ruling paints a picture of deepening tension between the branches of government, warning that a failure to honor judicial authority threatens to erode the rule of law. The opinion quotes Federalist No. 70 to affirm the importance of “energy in the executive,” but reminds the government that energy without restraint is antithetical to constitutional democracy.
In a particularly pointed passage, the court invoked President Dwight D. Eisenhower’s enforcement of school desegregation orders following Brown v. Board of Education, contrasting that moment of principled leadership with what it views as contemporary executive defiance.
“We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos,” the opinion concludes.
The court’s denial of the stay does not end the case but puts pressure on the government to take more aggressive steps to secure Mr. Abrego Garcia’s release from Salvadoran custody. The decision also sends a broader message: that courts will not stand by as constitutional protections are outsourced beyond the reach of judicial review.
Spokespersons for the Justice Department and the Department of Homeland Security declined to comment on the ruling.
Judge J. Harvie Wilkinson III is a distinguished figure in the American judiciary, known for his commitment to judicial restraint and the rule of law. Appointed by President Ronald Reagan in 1984, he has served on the U.S. Court of Appeals for the Fourth Circuit for over four decades, including a tenure as Chief Judge from 1996 to 2003.