It worked for them before. The regime notoriously spirited one Mahmoud Khalil out of New York City before a federal judge there could rule in his case. Then the regime argued that the federal judge had no jurisdiction since Khalil was no longer there. “The regime's response to Khalil's demand to return him to New York City was to say that the federal Court there has no jurisdiction.” The Doctrine of Nanny Nanny Boo Poo, posted here on March 18, 2025.
In that case, the federal judge in New York City ultimately agreed. But that was because Khalil filed a habeas corpus petition. The Latin basically means, “deliver the body,” and the federal judge in New York City ruled that if there was no body in New York City, then he did not have jurisdiction in a habeas case.
That’s not what happened in the case of Kilmar Abrego Garcia. The regime took Abrego Garcia to prison in the Salvador gulag, outside of the United States, where his life is undeniably in danger. An immigration judge ordered years ago that Abrego Garcia’s life was in danger if he was sent to El Salvador, and that as a result he should not be sent there.
The regime admitted that their abduction of Abrego Garcia was a mistake and they should not have done that to him. Moreover, Abrego Garcia’s lawsuit was not a habeas corpus petition since he had already been removed from the U.S. Instead, he alleged that the regime violated his Constitutional rights in sending him out of the country to prison in El Salvador. See Download Abrego Garcia v. Noem Complaint Doc. No. 1 filed March 24 2025 (D. Md. Case No. 8.25.cv.00951.PX) and Download Abrego Garcia v. Noem P's Emer. M. TRO Doc. No. 2 filed March 24 2025 (D. Md. Case No. 8.25.cv.00951.PX).
So what could the regime’s lawyers do to make this case like Khalil’s? Through a lawyer, they declared that Abrego Garcia’s case was really a habeas corpus case and, as in Khalil’s case, the federal court would not have jurisdiction.
The regime added one further thought. They argued that since Abrego Garcia had actually been removed from the country, that a United States District Court had no jurisdiction over his case and the Court could not order the regime to return him to this country. A lawyer actually wrote that, and the regime actually said that. See Download Abrego Garcia v. Noem Ds Opp. Memo. to P's Em.M.TRO Doc. 11 filed March 31 2025 (D. Md. Case No. 8.25.cv.00951.PX).
The U.S. District Judge in this case, Judge Paula Xinis, disagreed. She denied Abrego Garcia’s first try at a Temporary Restraining Order, but she ruled in his favor on his second try, when he filed what the Judge called a Motion for Preliminary Injunction. She granted his motion and also ordered the regime to return him to this country. Download Abrego Garcia v. Noem Order Granting Prelim. Injunction (D M.Stay) Doc. 21 filed April 4 2025 (D. Md. Case No. 8.25.cv.00951.PX) and Download Abrego Garcia v. Noem Memorandum Opinion (D M.Stay) Doc. 31 filed April 6 2025 (D. Md. Case No. 8.25.cv.00951.PX)
The regime has now appealed to the Fourth Circuit Court of Appeals, where I understand that they have filed an emergency motion to stay the District Judge’s Order. (Why might there be an emergency you ask? There isn’t any emergency that I can see.)
Ordinarily, a motion for a stay on appeal, emergency or otherwise, would go to a panel of Fourth Circuit judges but there is a way to circumvent that normal process. I will go into it later if it turns out that the regime is trying it, but I do not wish to give them ideas.
But that will not stop me from making a prediction for you about the ultimate success of the regime’s appeal in this case: I think that the Fourth Circuit will reverse the District Judge and hold that although mistakes were made, it is not the regime’s fault, i.e., the regime does not have to take him out of harm’s way by removing him from the Salvadoran death-trap of a prison to which they mistakenly sent him.
I make this prediction because I do not think that many judges on the Fourth Circuit Court of Appeals have the stomach to order the regime to do something that the regime may refuse to do. It may be that there are not many judges, federal or State, who have the stomach for the regime to defy their orders. Whatever would they do in that event? Rather than force the issue, I predict that they will side-step it completely.
They will rule that Abrego Garcia must stay in the prison in El Salvador without forcing the regime to obey the District Court.
At least for now.
Perhaps forever.
Time will tell.
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