He Was Deported by Administrative Error. We Talked to His Lawyer.

Summary

Amicus with Dahlia Lithwick | Episode: "He Was Deported by Administrative Error. We Talked to His Lawyer"

Release Date: April 5, 2025
Host: Dahlia Lithwick
Guest: Simon Sandoval Moshenberg, Partner and Head of Litigation at Murray Osorio PLCC

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Introduction

In this compelling episode of Amicus, Dahlia Lithwick delves into a harrowing case of wrongful deportation orchestrated by administrative error. The episode centers on Kilmar Armando Abrego Garcia, a Maryland husband and father, who was mistakenly deported to El Salvador despite holding a protective order preventing his removal. Lithwick interviews Simon Sandoval Moshenberg, Garcia's lawyer, to unravel the legal intricacies and the broader implications of this case.

Background of Kilmar Armando Abrego Garcia

Kilmar Armando Abrego Garcia was living in the United States legally, married to a U.S. citizen with a five-year-old autistic child. In 2019, while working as a day laborer, Garcia was arrested by ICE and applied for asylum. Although his asylum request was denied for not filing within the mandated one-year period, he was granted withholding of removal, a status that:

• Prohibits Deportation: Ensures he cannot be deported to El Salvador.
• Allows Legal Residency: Permits him to reside and work legally in the U.S. (From [06:18])

Notable Quote:
"Withholding of removal means two things. It means that he can't be deported to the country of El Salvador... he's allowed to remain in the United States and in fact, get a work permit."
— Simon Sandoval Moshenberg [06:18]

The Deportation Error

In March 2025, Garcia was unexpectedly deported to El Salvador aboard a U.S.-operated flight amidst a controversial deportation crackdown. This action contradicted the judge’s protective order from 2019 and raised significant legal and ethical concerns.

Key Events:

1. Apprehension on March 15th: Garcia was pulled over by ICE while picking up his child from daycare. He was threatened with child protective services if his wife did not arrive to escort his child.
2. Initial Detention: Garcia was bounced between detention centers, maintaining communication with his family until suddenly disappearing.
3. Media Revelation: Friends recognized him from media reports about Venezuelans deported to El Salvador, identifying him by his scars and tattoo.

Notable Quote:
"He just kept being bumped up the list, that he was not initially necessarily gonna be subject to all this, but as they plucked other folks, he just kept moving up in rank."
— Dahlia Lithwick [20:32]

Legal Arguments and Actions

Simon's legal approach emphasizes the administrative and judicial failures that led to Garcia's wrongful deportation. Key arguments include:

• Violation of Protective Order: The deportation violated the 2019 judge’s order prohibiting removal to El Salvador.
• Lack of Due Process: Garcia was not afforded the opportunity to contest his deportation in El Salvador, infringing on constitutional protections.
• Administrative Error Without Remedy: The government acknowledges the mistake but claims there is no available remedy to rectify it.

Notable Quote:
"The administration currently opposes his attorney's request to have him returned to the United States... they have zero obligation to do anything about that."
— Dahlia Lithwick [02:25]

Government's Position vs. Lawyer's Analysis

The U.S. government's stance is that Garcia's deportation was an "administrative error" stemming from a clerical mistake. However, Simon argues that:

• Precedent of Remediation: Historically, similar errors were promptly corrected by the Department of Justice and Homeland Security.
• Systemic Coordination with El Salvador: The deportation was part of a coordinated effort, not a random error, undermining the claim of mere clerical mishap.
• Legal Recourse Exists: Courts can compel the government to rectify wrongful deportations, challenging the notion that there is no remedy.

Notable Quote:
"Even if you take it for granted that this was an administrative error carried out in good faith, that does not absolve them of their obligation to at least try, by all means reasonably possible, to fix it."
— Dahlia Lithwick [23:14]

Court's Decision

Following legal motions, U.S. District Judge Paula Zinnis of Maryland ruled that the Trump administration had acted illegally in deporting Garcia. She ordered his return to the United States by midnight on April 7th, signaling the onset of a potential constitutional crisis as the government contemplates compliance.

Notable Quote:
"The Trump administration had acted illegally when it deported Mr. Abrego Garcia and ordered his return to the United States no later than midnight on April 7th this coming Monday."
— Dahlia Lithwick [02:28]

Implications and Conclusion

The case highlights significant flaws within the U.S. immigration system, particularly regarding the enforcement of judicial orders and the protection of individuals against wrongful deportation. Simon expresses optimism that coordinated legal and diplomatic efforts can secure Garcia’s return, though skepticism remains about the administration's willingness to comply.

Key Takeaways:

• Judicial Authority vs. Executive Action: The episode underscores the tension between court orders and executive actions in immigration enforcement.
• Protective Legal Measures: Emphasizes the importance of legal statuses like withholding of removal in safeguarding individuals from dangerous deportations.
• Systemic Reform Needed: Suggests a dire need for reforms to prevent administrative errors from overriding judicial protections.

Closing Remarks:

Dahlia Lithwick and Leon Nayfak conclude the episode by stressing the urgency of the situation and the necessity for vigilant legal advocacy to uphold constitutional protections against arbitrary government actions.

Notable Quote:
"It's an awful spot for the Supreme Court... We're going to have to pay the price for the choice that the American people made in November."
— Simon Sandoval Moshenberg [49:04]

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Additional Content

While the primary focus of the episode is on Garcia's wrongful deportation, brief segments discuss upcoming topics, such as the legality of Trump's tariffs and related legal battles. However, these sections primarily serve as teasers for future episodes and are not elaborated upon in this summary.

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This summary encapsulates the critical discussions and insights from the episode, providing a comprehensive overview for those who haven't listened to it.

Transcript

[Dahlia Lithwick]

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[Dahlia Lithwick]

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[Leon Nayfak]

I'm Leon Nayfak and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away.

[Dahlia Lithwick]

And then there's this rapid montage of.

[Leon Nayfak]

Newspaper stories about campaign aides and White House officials getting convicted of crimes, about audio tapes coming out that prove Nixon's.

[Dahlia Lithwick]

Involvement in the coverup.

[Leon Nayfak]

The last story we see is Nixon resigns. It takes a little over a minute in a movie. In real life, it took about two years.

[Dahlia Lithwick]

Five men were arrested early Saturday while.

[Leon Nayfak]

Trying to install eavesdropping equipment.

[Dahlia Lithwick]

It's known as the Watergate Incident. What was it like to experience those.

[Leon Nayfak]

Two years in real time?

[Dahlia Lithwick]

What were people thinking and feeling as.

[Leon Nayfak]

The break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes, this.

[Dahlia Lithwick]

Show is going to capture what it.

[Leon Nayfak]

Was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now, wherever you get your podcasts. Hi, I'm Dahlia Lithwick. Welcome to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court.

[Dahlia Lithwick]

When I saw it, I immediately broke down.

[Leon Nayfak]

The administration maintains the position that this individual, who was deported to El Salvador and will not be returning to our.

[Simon Sandoval Moshenberg]

Country, was a member of the brutal.

[Leon Nayfak]

And vicious MS.13 gang. I've seen news of that prison and I know they take criminals there, and my husband's not a criminal.

[Simon Sandoval Moshenberg]

The error that you are referring to.

[Dahlia Lithwick]

Was a clerical error.

[Simon Sandoval Moshenberg]

It was an administrative error.

[Dahlia Lithwick]

I was scared for his life.

[Leon Nayfak]

The historian Tim Snyder, writer Adam Serwer, and others describe the terrorism confinement center in El Salvador or CCOT simply as a gulag. How else can you describe the black site prison camp that America pays for to which anyone can be disappeared based on a tattoo or wearing a Chicago bull's hat? And even if that disappearing happened in error, which according to the US Government this past week can happen, there's nothing to be done about it. We're going to speak to the lawyer for a man trapped in this anti constitutional habeas corpus vacuum, this Kafka nightmare. In just a couple minutes after that, Slate senior writer Mark Joseph Stern is going to join me to talk about the legality of Donald Trump's disastrous tariffs this week. But first, first of all, I want.

[Simon Sandoval Moshenberg]

To thank El Salvador and their president.

[Leon Nayfak]

For their partnership with the United States of America to bring our terrorists here and to incarcerate them and have consequences.

[Dahlia Lithwick]

For the violence that they have perpetuated in our communities.

[Leon Nayfak]

It was not possible to talk to the men in the background of Secretary of State for Homeland Security Kristi Noem's propaganda Ganda video filmed in El Salvador last week. We couldn't ask them about the conditions they're enduring in sicot or who they are or whether they have access to counsel or if they even know what they're accused of, because these men are voiceless props in the Trump regime's tough guy porn set dressings in the new authoritarian aesthetic. We can't speak to the men in that prison camp in El Salvador, but we do now know that one of these men is Kilmar Armando Abrego Garcia, the Maryland husband of an American citizen and the father of a US Citizen child. In legal filings this week, the Trump regime now concedes it mistakenly deported Mr. Abrego Garcia, who was in the US legally when it bundled him on to the last of those three flights carrying hundreds of migrants to Seacot on March 15th. It was, it turns out, quote, an administrative error. But it is, we're now told, an error that has no remedy or relief. The administration currently opposes his attorney's request to have him returned to to the United States. While we can't speak to Mr. Abrego Garcia, indeed even his wife cannot speak to him. We can speak to his lawyer, Simon Sandoval Moshenburg, who filed a motion late Wednesday asking the judge in this case to do something to bring him home. Following a hearing on Friday afternoon, which took place after our interview, U.S. district Judge Paula Zinnis of Maryland found that the Trump administration had acted illegally when it deported Mr. Abrego Garcia and ordered his return to the United States no later than midnight on April 7th this coming Monday. Cue the sound of yet another constitutional crisis in the making as we watch for whether the government complies with her order. Okay, now on to my conversation with Simon Sandoval Moshenberg, a partner and head of litigation in Murray Osorio PLCC's Fairfax office. He has significant experience litigating against the federal government on behalf, including at the district court, court of Appeals and at the U.S. supreme Court. Simon, welcome back to Amicus.

[Dahlia Lithwick]

Thanks. It's nice to be back.

[Leon Nayfak]

I started by saying that your client was in the United States legally married to an American with an American child. And I wonder if you could just take us back to say, the beginning of March 2025 and explain to us what his formal legal status was at that moment.

[Dahlia Lithwick]

Sure. Mr. Abrego Garcia had been arrested by ICE previously in 2019 when he was working as a day laborer in front of a Home Depot. At that time, he applied for asylum. He was denied asylum, but solely on the basis that he had failed to file within one year of arriving in the United States. And so instead, the judge granted him a form of protection that's very similar to asylum called withholding of removal. Withholding of removal means two things. It means that he can't be deported to the country of El Salvador. That's an absolute prohibition. And it also means that he's allowed to remain in the United States and in fact, get a work permit. So for the past five plus years, he's been working a full time job with a legal work permit that he has been dutifully renewing. Perhaps the biggest difference between withholding of removal and asylum is that asylum puts you on a path towards a green card and ultimately US Citizenship. So I sure hope that we wouldn't be here in the same situation if he had been granted asylum. But really we shouldn't be talking about this at all because either way, the government was prohibited from deporting him to El Salvador, and they don't dispute that at all.

[Leon Nayfak]

And Simon, can you just tell us about what he was doing and what was happening on the day that he was apprehended by the government and how long it took for his wife and family to even figure out where he had gone.

[Dahlia Lithwick]

He had just left work. He went to pick up his five year old autistic US Citizen child at daycare and was driving him home when he was pulled over by an ICE vehicle. They pulled him out of the car. They said, you've got 10 minutes to get your wife here. To pick up the kid, or else we're going to put the kid in Child Protective Services. So he called his wife. His wife was able to get there, and his wife and child saw him. Being arrested and hauled off by ICE was very traumatic for the child. Over the course of the next several days, ICE bounced him around from detention center to detention center, and he was able to call his wife on multiple occasions and tell her where he was. And then all of a sudden, one day, he just stopped calling. And no one knew anything about him until a friend brought to her attention some of the media reports of the Venezuelans that had been deported to El Salvador. And they saw him and recognized him by some scars on his head and a lion tattoo on his arm.

[Leon Nayfak]

In another case that we've been following pretty closely on the show, we have Judge Boasberg in a different case in Washington, D.C. still trying to figure out the timing of these three flights to El Salvador. Who was on them, takeoff times, landing times, where the detainees were moved from, and when and whether court orders were disobeyed. I would love to know if you have any sense of whether there was some window of time in which Mr. Abrego Garcia could have raised an alarm before any adjudicatory entity to say, you've got the wrong guy, or, this is my legal status. Do we know that he had any kind of moment in which to do that thing that the Justice Department says all these folks were entitled, at least theoretically, to do?

[Dahlia Lithwick]

He'd already been granted an order by a judge saying, you can't deport him to El Salvador. Why is he gonna go and get a second one? I mean, if his wife had called me during that weekend when he was still in ICE detention in the United States, I expect that what I would have told her is, boy, if they've arrested him and detained him, my guess is that they're probably going to try to bring some kind of charges to try to get the judge to revoke that order. And they actually do have the right to detain him in the meanwhile. But he'll have the right to seek bond, right? He can try to get out on bond. While that judicial process is taking place here in the United States. It wouldn't have occurred to me in my wildest dreams to say, oh, you better double down on the order of protection preventing him from being deported to El Salvador. There's also this issue of third country deportations, right? They've been removing a few people to Panama, Costa Rica. There's a nationwide injunction in place that Says that if they're going to do that right now, they need to give the person notice and an opportunity to seek protection as to whatever that third country is. So if the wife had asked me, well, do you think they're going to deport him to Honduras, to Panama? I would have said, well, if they do intend to do that, they have to give him a notice of that, and they have to, you know, give him the opportunity to go to court and seek relief from being deported to that particular country as well. So if they haven't given him notice, we don't have to worry yet. So, no, there would have been really no reason to conceive in my wildest dreams that this was what was about to happen.

[Leon Nayfak]

And just for my edification, Simon, he was told when he was scooped up that his status has changed. Right. This wasn't true, but he was told that he was no longer subject to this order of protection.

[Dahlia Lithwick]

Yeah, that's what the ICE officer, you know, sort of carrying out the arrest told him. I'm totally used to ICE officers either lying or just being totally mistaken as to what the legal status of a proceeding is. But again, all of that would sort of lead you to believe that what they wanted to do here was take him back before the judge to try to get the judge to lift the order of protection. They can do that. Right. They can file proceedings to say, well, you know, he no longer needs or he no longer deserves withholding of removal as to El Salvador. But they have to do that in the same immigration court that issued the order in the first place. And critically, they bear the burden of proof. The government would bear the burden of proof the second time around in proving that the order is no longer appropriate. Unlike the first time around, in which he bore and met his burden of proof that he was entitled to the order in the first place.

[Leon Nayfak]

There's another wrinkle here, which is that your client was actually never accused by the Justice Department of being part of Trendaragua. That's the gang that allegedly invaded the United States and triggered the invocation of the Alien Enemies Act. Instead, ICE is claiming that he was a member, in fact a ringleader, of Ms. 13. Can you just walk me through what that's based on? And I know some of this goes back to 2019.

[Simon Sandoval Moshenberg]

Yeah.

[Dahlia Lithwick]

The only Trender Agua connection to this case seems to be that there were extra seats on one of the three airplanes because they couldn't find enough Venezuelans to put on them. And that's why, as they put, he got moved up a flight manifest and put on one of these planes. So there's no allegation, there's no connection whatsoever to Tranderagua. He was accused in 2019 when he was first arrested of Ms. 13 connections. No one ever accused him of being a ringleader or anything like that. But he was accused of being affiliated with MS.13. The basis of that was one of these confidential informant anonymous tips. There was never any sort of hard and fast evidence. The identity of the confidential informant was never revealed. The basis for the confidential informant statement was never revealed. That, and, you know, a Chicago bull's hat was the sum and substance of the evidence against him. Unfortunately, at the preliminary hearing, right after he was first arrested, the judge took a look at this and said, look, there's these allegations here. I don't know what's going on. I'm not going to release him. You know, I can't be sure. He's not a danger to the community. But then he went to trial and he won his trial. Right? So it's not uncommon in the immigration system or even in the criminal justice system that someone can be denied release at a preliminary hearing but then ultimately win their case. And that's exact what happened here. Now the White House is coming out with all kinds of crazy accusations that he's involved in human trafficking. They didn't even bother putting that in their court filing. It's so spurless.

[Leon Nayfak]

In the interest of the crazy arguments that are being advanced, I just want to play a clip of White House press secretary Caroline Levitt explaining that none of what you just said matters because he is, in fact a, you know, super important leader in MS.13. They keep saying he was convicted of something. The vice President said he was a.

[Dahlia Lithwick]

Convicted member of Ms. 13. What evidence is there to back that up? There's a lot of evidence in the Department of Homeland Security and ICE have.

[Leon Nayfak]

That evidence and I saw it this morning. She seems to be saying a, the White House knows this is a convicted gang leader, that she has seen the evidence against him, although none of us have seen it. And as a consequence of the things she is saying, he gets no due process at all. Is this in any anyway a correct statement of how immigration law actually works?

[Dahlia Lithwick]

First of all, no. It's just preposterous. But second of all, you know what we do when there's people in other countries who are wanted in crimes in the United States? We extradite them back to the United States. Go ahead, bring it. Extradite him back to the United States. He would Much rather be facing these crazy charges here in the United States, which I'm sure we can get knocked out very quickly, than continuing to be suffering the harsh treatment, if not torture, in the Salvador and Seekot prison. If think he's committing human trafficking and other crimes against the United States, extradite him back to the United States.

[Leon Nayfak]

And the other deeply strange thing, or at least it chimed so discordant with me, was Levitt then saying that even though this had been adjudicated in front of an immigration judge in 2019, who, as we all agree, made a determination, none of that matters because that judge answers to Pam, but a judge ordered.

[Simon Sandoval Moshenberg]

That he should remain in this country. So are you saying that it is okay to ignore a judge's ruling if you don't like it? Who does that judge work for? It was an immigration judge who works for the Department of Justice at the.

[Leon Nayfak]

Direction of the Attorney General of the United States, whose name is Pam Bondi.

[Simon Sandoval Moshenberg]

Who has committed to eradicating Ms. 13.

[Leon Nayfak]

From our nation's interior, who is, I guess, in possession of a DeLorean and can go back in time and change what a judge did it the time.

[Dahlia Lithwick]

Yeah, I mean, it's actually true that the immigration courts are set up in such a way that the ultimate right of appeal goes to the Attorney General of the United States. And the Attorney Generals under the first Trump administration actually use this quite frequently. They would certify appeals to themselves and then reverse decisions granting relief to immigrants. Jeff Sessions did this all the time, but the government didn't appeal. In 2019, when Mr. Abrego Garcia won his case, the government had every right and ability and very often does appeal to the Board of Immigration Appeals. And then from there, the appeal is, yes, directly to the Attorney General of the United States, but from there, the appeal goes to the U.S. court of Appeals for the Fourth Circuit. Right. So if they'd actually really sort of had this strong legal dispute or strong factual dispute, they could have taken it up through the system, they could have taken it up through the Attorney General, and it ultimately would have ended up at the Fourth Circuit Court of Appeals. And we would have had various levels of administrative review, executive review, and then finally judicial review. Fine, you want to do that? Knock yourselves out. Right. We'll obviously defend him vigorously and full throatedly, but you can't just say, forget all that stuff, short circuit it and just put him on a plane.

[Leon Nayfak]

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[Simon Sandoval Moshenberg]

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[Simon Sandoval Moshenberg]

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[Leon Nayfak]

More now from my conversation with Simon Sandoval Moshenburg, who is representing Kilmar Armando Abrego Garcia, a Maryland father and husband who has been locked up in El Salvador's notorious seacot prison despite a protective order prohibiting his deportation to El Salvador. So I just want to review everything you've said till now. Your client is married to US citizen. They have a five year old child who is a US Citizen who has autism. Your client has been living under protected status as granted by an immigration judge from 2019 that has never been appealed or reversed, and that that judge found that he would likely be targeted and in danger of gangs if he was sent back to El Salvador. All of this leads me to say that this visceral and astonishing part of the story you have just told is that you have never spoken to your client.

[Dahlia Lithwick]

That's right. He's held incommunicado in the CE Cot prison just like all the other prisoners there. The family actually hired a lawyer in El Salvador to try to establish contact with, and that lawyer hasn't been able to do so either.

[Leon Nayfak]

One thing that strikes me as important in this narrative is that he was on that third flight, right? The third contested flight. The flight that should, I think, not have landed in El Salvador because it was subject to Judge Boasberg's order. So am I counting right when I say that there are actually two judicial orders that should have stopped the government from deporting him. The first being that Immigration Judge 2019, and then Judge Boasberg saying, turn that plane around.

[Dahlia Lithwick]

Yes, that does seem correct to me. I mean, he shouldn't have needed Judge Boasberg's order. He should have never been placed on the flight manifest in the first place. But that is correct that there were two judicial orders that were sort of relevant here.

[Leon Nayfak]

And what's the relevance of. You said earlier that he just kept being bumped up the list, that he was not initially necessarily gonna be subject to all this, but as they plucked other folks, he just kept moving up in rank.

[Dahlia Lithwick]

So the government needs to explain why this was an accident when they deliberately pulled him over, deliberately took him into custody, deliberately sent him down to the staging area. Right. These ICE flights to Latin America only leave from a couple of detention centers in Louisiana and Texas, and that's the one they took him to. Right to the staging facility. So they need to explain why they did all that. So their explanation is, well, we had him on a flight manifest, but he was an alternate, whatever that means. And, you know, as people got pulled off the list, he ended up getting bumped up and ended up getting put on the flight. And so that's why it was an accident. I don't understand what that means at all. Quite frankly. I don't understand why you would put someone on an even as an alternate if they are absolutely prohibited from being put on the flight to begin with. But that is sort of their explanation as to why this is an accident. But I have to say, this is far from the first erroneous deportation case that I've handled practicing immigration law for almost two decades. It's certainly not common, but it happens from time to time.

[Leon Nayfak]

Time.

[Dahlia Lithwick]

And in every such case that I handled previously, as soon as I sort of brought it to the attention of the Department of Justice and the Department of Homeland Security and convinced them that they'd made a mistake on this one, they immediately, you know, bent over backwards and moved mountains to get my client back to the United States. I handled a case of that nature under the first Trump administration. They erroneously deported a guy to Guatemala while his proceedings were still pending. As soon as I brought it to their attention, they brought him back very, very quickly. I spoke with a lawyer who handled a case in which an Iraqi was erroneously deported to Iraq. They worked very hard to get him back quickly. After the family separation debacle, when the preliminary injunction was entered, the government spent the next six years traipsing the mountainsides of rural Guatemala looking for, and in many cases, finding the parents of these separated children. We never managed to find quite all of them, but we put a lot of. And we found very many of them. So really, what's new and shocking about this case is not the fact that someone was deported by mistake. It's their position after the fact that, you know, they have zero obligation to do anything about that. They have zero interest in rectifying the situation, and no court can make them.

[Leon Nayfak]

Yeah, it was interesting in your Wednesday motion. One of the things that I think you flagged is that we know how this goes. When they retrieve somebody that they have erroneously deported, this is not the first time. And that the answer that they offer in their own pleadings is that this was like, quote, an administrative error and that it was in good faith that somehow it absolves them. That's new and kind of crazy. Is that even credible that they're making the argument we have no responsibility to do this because we. Even though we knew it was a mistake, we were in good faith? That's new. Right? That's what's shocking.

[Dahlia Lithwick]

I mean, that's ridiculous. Like, even if you take it for granted that this was an administrative error carried out in good faith, that does not absolve them of their obligation to at least try, all means reasonably possible, to fix it. It is quite clear that there's a detailed level of coordination between El Salvador and the United States when it comes to these deportations. The plane with Mr. Abrego Garcia and the Venezuelans, the planes landed in El Salvador, and they didn't just sort of get off the plane and wander around El Salvador and eventually get arrested. The Salvadoran security forces were waiting at the airport with sufficient troops, sufficient vehicles to take every single one of those individuals directly to the CECOT jail. This was a highly coordinated operation. And so I don't know why they seem to think now that they can't be made to call on those same levers of coordination and cooperation to ask for him back. I really do think it's gonna work. I mean, maybe I'm being naive, but I do think that if we make a good faith request, not a wink and a nod, but a good faith request that the government return him to us. I expect that they would. I don't see why they wouldn't. Again, we do this all the time. When it comes to extraditions, right? Like criminals, Colombian alleged drug lords, we do this all the time. Ms. Thirteen leaders have been extradited from El Salvador to the United States to face criminal sanctions here in the United States for crimes that they committed in the United States or directed in the United States. This is a thing we do all day, every day. We can do it in this case, too.

[Leon Nayfak]

So this actually brings us to the nut of what the relief is that you are seeking here, which I think is, as you say, ask nicely, Mr. President. Right. Like that's. That's what the request is. And I think you note that it's not as though the United States has no say over this. They've paid $6 million to detain folks at Seacot Mar. Rubio thanked the president of El Salvador on Twitter. Kristi Noem did a photo op inside the prison after all this was filed. So I guess I just want you to explain to me how it is that. Well, you can't explain it to me. You're trying to get the government to explain it to you. But how is it possible that they can claim in front of a court that they just have no say in what happens to him now?

[Dahlia Lithwick]

Yeah, I think their argument that we have no ability to do anything about this really got kneecapped when Kristi Noem put herself inside the walls of that prison. Right. I mean, I think that just makes it crystal clear that, in fact, we have a great amount of say over what happens inside the walls of that prison, at least persuasively, if not the ability to sort of force the government of El Salvador to give him back. You know, in cases of this nature, I think it's fair to let the government take the first crack at it. It. Right. But that has to be done under close watch to make sure that they're actually doing it in good faith, especially given statements from the White House at this point saying that they're not going to bring him back. So if the court gives them the first crack at it, which, again, I think is fair and appropriate, it has to be done under very close monitoring to ensure that they're doing it in good faith. And not again, like I say with a wink and a nod, that they're actually genuinely asking for him back in the same manner that they would, you know, if they wanted to bring him here for criminal prosecution in our federal courts, for example. Now, you know, the government's going to say, well, this is very sensitive diplomatic stuff. You can't, you know, you can't force us to reveal the sensitive nature of our diplomatic communications. Again, the court has procedures to handle all of that. It can all be done under seal. It can Be done in camera. Right. For the judges. If they don't want me to see it, fine. I, you know, I absolutely trust the district judge to make sure that this is being done fairly and in good faith. They can file it in camera, but these, you know, these courts have handled nine, 11 prosecutions. They can certainly handle this sheet metal worker from Prince George's County, Maryland.

[Leon Nayfak]

Simon, we haven't talked about the conditions at CECOT yet, but I guess it's relevant that Judge Boasberg in that other case found the conditions at CECOT present, quote, the risk of torture, beatings and even death. You claim in your briefing that the conditions rise to the level of irreparable harm. And the government's response seems to be another version of just trust us. Right. They say this court should defer to the government's determination that Abrego Garcia will not likely be tortured or killed in El Salvador. Is it material? Will it matter that he's in a absolutely hellish prison that we know to be deeply dangerous and that the government is just telling us, trust us, he's okay?

[Dahlia Lithwick]

I think the conditions are relevant insofar as they create a sense of urgency for the court, for the government.

[Leon Nayfak]

Right.

[Dahlia Lithwick]

I think if he was being held in a normal prison or if he were free at liberty to wander around the country of El Salvador, we could handle this litigation on sort of a more regular timeline. But I think given the nature of the conditions, this needs to be done very, very quickly. Too long has passed already with the government not even beginning. I mean, I was so shocked when I got their brief because I thought what it was going to say is we recognize our error and we've already started the wheels in motion to bring him back. But, Judge, you shouldn't mess with that because we're already working on it and we got this under control instead of, yes, we messed up, but we're not going to do anything to fix it. I almost spit out my coffee when I read their paragraph about the government makes determinations under the Convention against Torture. Yeah, that's right. And the person within the human being within the government who makes that determination is an immigration judge. That's who determines whether someone's likely or not likely to be tortured in a particular country, and that's who they needed to bring him in front of, and that's who they didn't bring him in front of. So of all the things they wrote in their brief, that paragraph that, you know, the government makes determinations about whether someone's going to be tortured, that was the most bitterly ironic of all, because that's exactly the legal process that he was entitled to and didn't at in the case.

[Leon Nayfak]

Again, before Judge Boasberg, the Justice Department consistently argues that all of these rendition prisoners had heaps of time to file a habeas petition, and they should have done that. And of course, now we know they can't do that in El Salvador. And my colleague Mark Stern wrote this week that the filings in your case held up next to those seem to show that the government is pretty knowingly racing people to what is kind of a black site for migrants in El Salvador. Is there any other way to look at the behavior that says we made a mistake? There's nothing that anyone can do about it other than it just looks as though folks are being shoveled into a place where they cannot have any process.

[Dahlia Lithwick]

It is not the case that as long as they do something quickly enough to get away with it, therefore, there is no remedy under law. That is not and has never been the case and cannot be the case. And this case makes it so stark because. Because the government also argues that federal courts generally don't have jurisdiction over immigration removal matters and that those types of matters need to be funneled to the immigration courts. Right. So the thing that my client supposedly was supposed to have done to prevent himself from being deported to El Salvador was to go to an immigration court and get an order of protection from being deported of El Salvador, which he already had since 2019. Right. So it just lays bare how none of this makes sense, because the thing they're faulting him for not having done, he'd already done it five years ago. He had no reason to do it again.

[Leon Nayfak]

And I guess the last question that I have, and this is everywhere in your briefing and in your discussions of this case this week, but I just think it's the. What's the limiting principle here question, because I can't understand reading JD Vance's tweets or listening to Carolyn Levitt. What. What would possibly stop Pam Bondi or Marco Rubio or President Trump from saying that some federal judge they don't like is also a member of some gang and entitled to no due process or finding of facts and can be deported to a third country? And oh, by the way, even if it's an accident, nothing can be done. I mean, this feels like it swallows the totality of immigration law as you practice it. And I understand it. Is there some limiting principle other than we're in a war and it's exigent and trust us, no there really isn't.

[Dahlia Lithwick]

I mean their arguments could be applied to US citizens just as easily as to Mr. Abrego Garcia. The argument that even if we deport someone with admittedly no legal basis whatsoever, there's nothing anyone can do after the fact, there's no limiting principle to that whatsoever. And if the orders of immigration courts can be recklessly ignored and then there's no after the fact remedy for that, that but we might as well not have them, right? I mean why even bother having these immigration courts in the first place if their orders aren't enforceable? It simply can't be the case. And I confident that at the end of the day law is going to prevail over power. Right now what we had was men with guns forcing a man onto a plane. There was no law involved whatsoever. But it is now time for the supremacy of the legal process to reestablish itself.

[Leon Nayfak]

Simon Sandoval Moshenberg is Mr. Abrego Garcia's lawyer. He is a partner and head of litigation in Murray Osorio's Fairfax office. Thank you so very much Simon for your time with us today and we will be watching really, really closely. This is a case that should have have everybody in the country on fire and I hope they will be.

[Dahlia Lithwick]

It's great to be here with you.

[Leon Nayfak]

We're going to take a short break, but when we come back, Slate senior writer Mark Joseph Stern joins me in not looking at our 401ks but instead to talk about the legality of Trump's tariff trade war and the leopard eating face lawsuit from conservative legal movement stalwarts. This podcast is brought to you by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy. Just drop in some details about yourself and see if you're eligible to save money when you bundle your home and auto policies. The process only takes minutes and it could mean hundreds more in your pocket pocket. Visit progressive.com after this episode to see if you could save Progressive Casualty Insurance company and affiliates. Potential savings will vary. Not available in all states. Today's episode is sponsored by Nerd Wallet's Smart Money podcast. Life comes with big money questions like Are targeted date funds a smart or lazy way to invest? Should you pay off debt or invest extra cash? Can you deduct your dog as a home security system on your taxes? NerdWallet Smart Money podcast has the answers there. Finance journalists break down investing strategies, tax planning and smart ways to build wealth and navigate big financial decisions. Work smarter, not harder on your finances this year. Follow NerdWallet Smart Money podcast wherever you listen. And stay tuned until the end of the episode to hear the Smart Money trailer.

[Simon Sandoval Moshenberg]

Hey everyone, it's Mary Harris, host of Slate's what Next Podcast. This week we are talking with Slate's Eamonn Ismail about the secretive group that is claiming credit as one student after another gets snatched up up by ice. They call themselves Canary Mission.

[Dahlia Lithwick]

Yeah, even even the name kind of.

[Leon Nayfak]

Invokes fear in me.

[Dahlia Lithwick]

I'm not going to lie.

[Simon Sandoval Moshenberg]

Really?

[Dahlia Lithwick]

Yeah. Yeah, because they, they seem to have an outsized, like a tremendous amount of power to say who is and who isn't dangerous to this country right now.

[Simon Sandoval Moshenberg]

Hear the rest of the story on what Next with me, Mary Harris, wherever you listen.

[Leon Nayfak]

The news of the week outside of our own rather frantic legal lane on the show is of course, President Trump's Day of Liberation global tariff regime and the absolutely predictable but nonetheless disastrous fallout across the entire world economy. Yet it turns out that amid all this economic news, there still lurks a legal question, which is, are the tariffs even legal? Slate's own Mark Joseph Stern has been pondering this very question as a first lawsuit has been filed in the courts by a rather unpredictable group. So hi, Mark.

[Simon Sandoval Moshenberg]

Hi, Dalia.

[Leon Nayfak]

Can you start with what should be the simple part of this? What is the legal basis for this round of tariffs, or at least the Trump administration's claim for their legality?

[Simon Sandoval Moshenberg]

Yes. So there is a federal statute that gives the president sweeping discretion to impose tariffs. That is called the Trade Act. But Trump has not invoked it for this round of tariffs, probably because it still has some limitations, it still has some procedural requirements, and it can take a little while to enact tariffs under that law. So instead, Trump has tried to find a shortcut by invoking the International Emergency Economic Powers Act. This is another very broad law that allows the President to declare an emergency to, quote, deal with any unusual and extraordinary threat which has its source in whole or substantial part outside the United States. And it doesn't define those terms, but it says that once a declaration of emergency is in place, the president may regulate, quote, any property in which any foreign country or any national thereof has or has had any interest, notes a word that does not appear in the statute I just read, which is tariffs. This is not a tariff statute. This is a broad and vague national emergency law that the president is attempting to rewrite rights into a blank check that allows him to slap massive, massive tariffs on nations around the globe with no real legal process with no clear authority from Congress and with no procedure in place that would allow the countries facing tariffs to do something, anything, to get free from them.

[Leon Nayfak]

Go back to the broad and vague emergency law that you just said. Even on its own terms, this is a really, really broad and really, really vague law. And this is the kind of language from which Trump divines the sweeping authority to do a thing that should belong to Congress, which is impose these massive tariffs that translate into just a huge tax on all American consumers.

[Simon Sandoval Moshenberg]

Yes, and let me just pick up on something you said should belong to Congress does belong to Congress, in the Constitution is expressly assigned to Congress, not the president. There are powers that go to Congress and different powers that go to the president. And this is one that the Constitution says is for Congress. And again, Congress has enacted a law delegating the tariff power to the president. But Trump hasn't invoked it. Instead, he invoked this emergency law. What emergency, by the way, exists that Trump claims necessitates the imposition of these tariffs? So for some countries, he has these specific gripes. Like he says that there's an illegal shipment of opioids from China that he can somehow solve by imposing these tariffs. But his overarching complaint is, I'll just quote the domestic economic policies of key trading partners and structural imbalances in the global trading system. Ask yourself whether that is the kind of urgent, pressing national emergency that Congress was contemplating when it enacted this law. And then further ask yourself whether when Congress acted this law, it was really thinking that this brain melting, stupid series of tariffs rooted in nothing but the administration's own bad math and paranoia fits the bill for what lawmakers wanted. I do not think that if we could go back and read the minds of those lawmakers, they would say, yes, exactly. This vague and misunderstood sense of a trade imbalance is exactly the emergency that we intended this law to apply to.

[Leon Nayfak]

It's so funny because it's hard not to look at this next to the other emergency, which, as you know, is that the nation of Venezuela is a foreign power that is invading the United States by way of a gang. Like, this is so crazy. The emergency in all these cases is democracy. Like, that's the problem. But let's talk through the lawsuit, which was filed almost immediately. On Thursday, the New Civil Liberties alliance files suit arguing that these tariffs are illegal for the reasons you're about to explain. But I just want to be like, super clear about who the NCLA is, because this is not like a tree hugging hippie Birkenstock organization. This is a super conservative firm that has been allied with the Trump administration, was toasting very recently, like Doge and MAGA and all the big wins. The NCLA argued one of the cases that took down Chevron deference at the Supreme Court last term. It hired Mark's favorite, Jeffrey Bossert Clark, one of the legal organizers of Trump's efforts to overturn the 2020 election and somebody who is outside any kind of like, bandwidth of what you and I see as a sane lawyer. And so like, let's just say this is not a politically expedient suit for these guys.

[Simon Sandoval Moshenberg]

No, it is not. It is very surprising to see the New Civil Liberties alliance step up to the plate and be the first out of the gate with the lawsuit against the Tarif. As you said, they are really, really closely aligned with the Trump administration. Their main goal is the demolition of the administrative state. And yet I guess they still have some shred of integrity because they are very much going against their usual ally here. They have filed a lawsuit and they are invoking the major questions doctrine to argue that the imposition of these terrorists tariffs is the kind of question of vast economic or political significance that according to the Supreme Court, Congress must expressly authorize if the executive branch seeks to take such sweeping action. I think that is a plausible argument. As I've said, the law that the White House has invoked here does not talk about tariffs. I think it's really dubious that this is the kind of emergency that Congress intended the President to address through this law. But I'll note that that like so far in our lives and in the life of the major questions doctrine, it has only ever been invoked by the Supreme Court against Democratic presidents and specifically against Joe Biden. Right. The Supreme Court used it to strike down Joe Biden's clean power plan that would have restricted carbon emissions at coal fired power plants and just as notoriously invoked it to strike down Biden's student loan relief plan. And I think that's notable because this student loan relief plan was also enacted under an emergency law, the HEROES act, which was passed after 911 and gave the executive branch this very broad discretion to forgive student loans. When there is a national emergency. The administration said Covid is a national emergency. We need to forgive these loans. The Supreme Court swatted it down and said that's not the kind of emergency Congress was thinking of. This doesn't count. These loans can't be forgiven this way. And so I think, think in some ways this is like a big test for the major questions doctrine. Is this something that conservative justices whip out when they want to assert a free floating veto over policies of Democratic administrations that they don't like? Or is this a real, legitimate, neutrally applied principle of the law that can be wielded against Republican administrations, even if the administration and the Supreme Court largely see eye to eye on everything and share many of the same policies? Now, I'll note the footnote here is that I don't think that the Supreme Court justices on the right all love tariffs. I'm sure if Trump loves them, Clarence Thomas and Sam Alito love them too. But John Roberts and Brett Kavanaugh are sort of Chamber of Commerce types. They're not going to be infatuated with this idea of a massive tax hike on American consumers. So this could be a test of the Supreme Court's integrity and nonpartisanship. It could also be in some ways a cynical opportunity. Opportunity for Robertson, Kavanaugh, and maybe Barrett to invoke the major questions doctrine against a Republican president. To say, look, see, it's not just something we wield against Democrats, we're using it against Trump too. But also deep down in their hearts to get what they want, which is the abolition of an insane economic policy that is utterly irrational and bad for the country and bad for business and corporations. They could sort of have their cake in each it to.

[Leon Nayfak]

So, Mark, I think maybe one of the reasons that people get frustrated with legal podcasts is because sometimes it seems like we're asking the wrong question, which is, is this legal? And I think maybe the other thing that frustrates them is that the answer to that question is always, does the Supreme Court think it's legal? Right. And so I, I feel as though maybe we need to end on the sort of legal realism note here, which is, does it even matter if the Supreme Court by some margin invokes the, as you say, very, very long history of the Major questions doctrine and comes down one way or another? Is the court really in a position to stop what looks like it is going to be a debilitating massive recession, global recession, that Donald Trump, in his hatred of tiny penguins on a island with no humans, is just determined to set off?

[Simon Sandoval Moshenberg]

Yeah. I mean, first I just want to reflect on how depressing it is that here we are sort of hoping for the sake of the global economy and people's livelihoods, that the Supreme Court does invoke an utterly made up doctrine with no basis in federal statute or the Constitution in order to save the country from itself, from the president that it elected. Right. We should be very clear that if the court does this, I don't even know, is it a win for the law? Like, yes, this national emergency statute clearly doesn't authorize tariffs, but the major questions doctrine is also bogus, and I don't want to lend it any more legitimacy than it already has. So it's a bad situation to be in. But beyond that, you know, I do think that if there is a despair that I'm sensing in your question, a note of hopelessness, I think it is well founded. Right. We say on this show all the time the federal judiciary is a reactive institution. It reacts to decisions made by the other branches. If we want to put it really cynically, it reacts to big, big fat mistakes made by the American people and who they choose to represent them. Trump ran on tariffs. This is not a surprise that he's doing this at all. He promised at every rally and campaign stop he would restore the tariffs of the 1890s. That is what he is attempting to do. It is promises made, promises kept. Even if the Supreme Court stepped in tomorrow to block these tariffs, immense damage would have already been done. It's unclear whether the court could, you know, close the barn door after the horses have gotten out. And should the Supreme Court intervene, it would be weeks, months, maybe even a year from now. At which point Trump's tariffs could have easily sent us tumbling into a national recession, a global recession, stagflation, something even worse. Right. And so I do think this shows the stupidity of anyone who thought, well, I'll vote for Trump, but I know the Supreme Court will rein in his worst impulses. Right? That's not how it works. The Supreme Court is not sitting in the Oval Office ready to immediately, immediately veto every miserable and illegal action that the President takes. It has to wait for the right lawsuit at the right time. Even then, a good decision is not guaranteed. And as we've discussed here, it's unclear what a good decision looks like. For the law, it might be one thing, for the economy, it might be another. So it's a bad spot for the Supreme Court. I don't envy the justices having to make this decision, which they surely will soon enough. And they simply cannot save us from a mad king president who's dead set on setting off a global trade war. If he wants to do it, he's gonn find a way to do it. The Supreme Court can try to box him in, but here we are seeing the stock market plunge and John Roberts is not there banging on the doors of the White House saying, let me in. I gotta strike this down. That's not how it works. It's not how it's ever worked. We are all going to have to pay the price for the choice that the American people made in November.

[Leon Nayfak]

I want to gently reframe one thing you said, which is that my question was rooted in despair, as you and I have both agreed since this last election, Sunlight, best disinfectant and good to call things what they are. And so to me, I think there is some utility in saying a, this is utterly lawless by everyone's metrics, including stalwart members of the conservative legal movement and its attempt to dismantle government as we know it. But also, also, like, very useful to say that the court is very much the author of an awful lot of the misery we now find ourselves in. And, you know, all roads lead back to, in my view, in some sense, the immunity decision and other decisions going all the way back to Citizens United that put us where we are. And so I think that the root of my question is not so much despair like Nelson Munt's, ha ha, but it is the sense, sense that, you know, the court is now going to have to either try to stop this by way of a completely bogus, invented, half baked idea called the major questions, quote, unquote doctrine, but at least we can say that the court is the author of its own misery. And I don't know if that's despair, but at least it's clarity. Mark Joseph Stern covers the courts and the law and, and all the things, including the penguins for us at Slate. Mark, thank you very much for being with us. And we will talk to you in a moment in the Plescetiers Treehouse.

[Simon Sandoval Moshenberg]

Yeah, I'll see you in the treehouse, Dahlia.

[Leon Nayfak]

One last thing for Mark Stern fans. I know you are legion. I am among you. You can get even more of Mark Joseph Stern this week if you tune into Slate Money. Mark was on Talking Big Law's capitulation to Trump. Search Slate Money wherever you get your podcasts to listen in. And that is all for this episode. Thank you so much for listening in and thank you so much for your letters and your questions. You can keep in [e-mail] or you can find [e-mail] Amicus Podcast. Mark Stern and I are heading over to the Amicus plus bonus segment right now. Mark is going to walk us through the art arguments in a case at the Supreme Court this week that could see even more Planned Parenthood clinics shuttered. We'll also be talking about another super spicy hearing in Judge James Boasberg's courtroom as he wades sanctioning the Trump administration for defying his court order to turn around those El Salvador bound rendition flights. You can subscribe to Slate plus directly from the End Amicus show page on Apple Podcasts and Spotify, or you can visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's Senior producer. Our producer is Patrick Fort, Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive Editor and Ben Richmond is our Senior Director of Operations. We will be back with another episode of Amicus next week.

[Simon Sandoval Moshenberg]

Today's episode is sponsored by Nerd Wallet's Smart Money Podcast Money can be confusing. Should you invest in ETFs, get a.

[Dahlia Lithwick]

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[Simon Sandoval Moshenberg]

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[Leon Nayfak]

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[Dahlia Lithwick]

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[Leon Nayfak]

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[Simon Sandoval Moshenberg]

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[Leon Nayfak]

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[Dahlia Lithwick]

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[Leon Nayfak]

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[Simon Sandoval Moshenberg]

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[Dahlia Lithwick]

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[Dahlia Lithwick]

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[Leon Nayfak]

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[Dahlia Lithwick]

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[Leon Nayfak]

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[Simon Sandoval Moshenberg]

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[Dahlia Lithwick]

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[Simon Sandoval Moshenberg]

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[Dahlia Lithwick]

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[Dahlia Lithwick]

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[Leon Nayfak]

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[Dahlia Lithwick]

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[Simon Sandoval Moshenberg]

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