I have no objection to removing him if warranted. I do agree with the Fourth Circuit that due process needs to be followed. There are seven pages to the opinion authored by Wilkinson, a Reagan appointee, and I have only placed some of the opening here. The issue here is larger than Garcia's particular situation.
FILED: April 17, 2025
UNITED STATESCOURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-1404
(8:25-cv-00951-PX)
KILMAR ARMANDO ABREGO GARCIA; JENNIFER STEFANIA VASQUEZ
SURA ; A.A.V., a minor, by and through his next friend and mother, Jennifer
Vasquez Sura,
Plaintiffs Appellees,
V.
KRISTI NOEM; TODD LYONS; KENNETH GENALO ; NIKITA BAKER;
PAMELA JO BONDI; MARCO RUBIO,
Defendants – Appellants.
ORDER
WILKINSON, Circuit Judge, with whom KING and THACKER, Circuit Judges, join:
Upon review of the government's motion, the court denies the motion for an
emergency stay pending appeal and for a writ of mandamus . The relief the government is
requesting is both extraordinary and premature. While we fully respect the Executive's
robust assertion of its Article II powers , we shall not micromanage the efforts of a fine
district judge attempting to implement the Supreme Court's recent decision.
It is difficult in some cases to get to the very heart of the matter. But in this case, it
is not hard at all. The government is asserting a right to stash away residents of this country
in foreign prisons without the semblance of due process that is the foundation of our
constitutional order. Further, it claims in essence that because it has rid itself of custody
that there is nothing that can be done.
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 government asserts that Abrego Garcia is a terrorist and a member of MS-13.
Perhaps, but perhaps not. Regardless, he is still entitled to due process . If the government
is confident of its position, it should be assured that position will prevail in proceedings to
terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the
government prove "by a preponderance of evidence" that the alien is no longer entitled to
a withholding of removal). Moreover, the government has conceded that Abrego Garcia
was wrongly or "mistakenly” deported. Why then should it not make what was wrong,
right?