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A divided federal appeals court on Monday rejected a request from the Trump administration to put on hold a judge’s order requiring the government to “facilitate” the return of a 20-year-old Venezuelan refugee who was deported earlier this year to El Salvador. The 2-1 ruling from the 4th US Circuit Court of Appeals tees up a likely showdown at the Supreme Court over the order issued in April by US District Judge Stephanie Gallagher, who said the administration had violated a court settlement protecting some young migrants with pending asylum claims when it deported the man, referred to only as “Cristian” in court filings, and directed it to work with Salvadorean officials to bring him back to the US. The high court had endorsed a similar, yet less specific, order from a different federal judge earlier this year in a separate case of a man unlawfully deported to the Central American country. Appeals court Judge DeAndrea Gist Benjamin, an appointee of former President Joe Biden, and Judge Roger Gregory, who was nominated to the court by former President Bill Clinton, voted in favor of keeping Gallagher’s order intact. Judge Julius Richardson, who was appointed to the 4th Circuit by President Donald Trump, dissented. In a scathing solo concurrence, Gregory was critical of the administration’s argument that the lower-court order should be put on hold because the government had made an “indicative decision” that Cristian’s asylum application would be denied if he returned to the US based on its claim that he’s a member of the Venezuelan gang Tren de Aragua. That argument similarly had no sway when the administration asked Gallagher to undo her order. “As is becoming far too common, we are confronted again with the efforts of the Executive Branch to set aside the rule of law in pursuit of its goals,” Gregory wrote. “It is the duty of courts to stand as a bulwark against the political tides that seek to override constitutional protections and fundamental principles of law, even in the name of noble ends like public safety.” He continued: “The district court faithfully applied the contractual provisions in dispute here, and it properly ordered the United States to remedy the violation of its explicit promises.” Writing in dissent, Richardson said Gallagher, a Trump appointee who sits in the federal courthouse in Baltimore, had overstepped when she issued the “novel” ruling requiring Trump administration officials to make “a good faith request … to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States.” “Many options may be available to district courts seeking to craft appropriate relief in response to deportations they find unlawful,” he wrote. “But directing diplomatic negotiations to the Executive Branch is not among them.” Cristian was among the group of migrants who were deported in mid-March under the Alien Enemies Act, a sweeping 18th Century wartime authority Trump invoked to speed up removals of individuals it claims are members of the Venezuelan gang Tren de Aragua. During a hearing earlier this month, Gallagher said officials had done virtually nothing to comply with her directive that it “facilitate” Cristian’s return to the US from the mega-prison in El Salvador where he was sent so he can have his asylum application resolved. She emphasized that while the administration may have deemed him a member of the Venezuelan gang, the settlement agreement he was covered under, which was finalized in November, did not include an exception for any use of that law. “Process,” she said at the time, “is important.” Benjamin agreed. “The removal denied Cristian the chance to dispute on the merits the very accusations the Government now puts forth on appeal to justify its breach,” she wrote in a concurrence that was joined by Gregory. “The Government’s breach denied Cristian the benefit of the bargain and the process he was due.”
