Lawyers Urge Court To Lean Hard On Trump Admin To Fix Immigration 'Ooopsies'

Make 'em an offer they can't refuse.

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“Ooopsie… Too late,” Salvadoran President Nayyib Bukele tweeted on March 16, adding the “cry laughing” emoji for emphasis as he taunted a federal judge about helping the US government defy a court order.

Since then, the Trump administration has taken roughly the same posture in its legal filings. Every time it gets caught violating the law or defying a court order, it denies having done so, while simultaneously insisting that its too late to unwind it.

And they’re doing it because the Supreme Court told them they could in the case of Kilmar Abrego Garcia, the Maryland man renditioned to El Salvador despite a court order saying not to. When Judge Paula Xinis ordered the government to “effectuate and facilitate” his return , six conservative justices leapt in and crossed out the term “effectuate,” leaving only the nebulous instruction to do something to bring back someone all parties agreed had been illegally deported.

“The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” they minced. “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

Perhaps the justices hoped the Trump administration could simply be shamed into complying with the law. If so, that was an exceptionally poor calculation. Instead the order functioned as a permission slip to deport anyone, regardless of the law or court orders, and then stonewall judges with specious arguments that the plaintiff is outside the court’s jurisdiction and the government’s control.

In the Oval Office, Bukele affected wide-eyed astonishment at the suggestion that he “smuggle” Abrego Garcia back into the US. And even as Trump admits that he could get him back with one phone call, the government refuses “share what it can” about how it intends to “facilitate” Abrego Garcia’s return.

And Abrego Garcia isn’t the only immigrant trapped in this limbo of the Supreme Court’s making. This week the Buffalo nonprofit news outlet Investigative Post reported on the case of Jordin Melgar-Salmeron, who was deported to El Salvador on May 7 despite an order from the Second Circuit barring the government doing just that. That order was premised on the explicit promise that Melgar-Salmeron would not be deported until May 9.

In April, DOJ lawyers told the court that “if a determination is not made by May 8, 2025, [Attorney General Bondi] intends to inform DHS that the forbearance policy is no longer applicable in this case, and that DHS may remove Petitioner at any time, provided the Court has not issued an order granting a stay.”

Based on that representation, the three-judge panel waited until 9:52 am on May 7 to issue that stay. Melgar-Salmeron was deported 28 minutes later on an ICE Air flight out of Alexandria, Louisiana and is now reported to be in Izalco prison, a facility almost as notorious as CECOT for its human rights abuses.

The Second Circuit was predictably pissed and ordered the government to explain itself. The judges posed nine multi-part questions, such as:

3. Did anyone at [the ICE field office in] Buffalo communicate to anyone at [the ICE field office in] New Orleans that the Government had made an assurance to this Court that it would forbear from removing Petitioner until May 8, 2025? If so, who made the communication and to whom was it made? Through what means was such communication made? If no communication was made, who made the decision not to communicate that information and why?

The government’s response can be roughly paraphrased as “Ooopsie… Too late,” albeit without the emoji. In 26 pages of bureaucratic blather, the DOJ describes “a confluence of administrative errors” that supposedly arose because the field office in Buffalo retained “docket control” over Melgar-Salmeron’s record even after he was transferred to Louisiana for deportation. It depicts ICE as grossly negligent at best, and at worst willfully defiant of court order. And yet, even conceding the administrative cockup, the DOJ insists that there was no defiance of the court order because Melgar-Salmeron was already on the plane when the Second Circuit’s order came down.

Petitioner's removal began before this Court granted Petitioner's stay of removal and was not in violation of the Court's order.

A cry-laughing emoji would have been subtler. A middle finger emoji would have been subtler!

In their scathing reply, Melgar-Salmeron’s lawyers note that ICE:

• submitted conflicting declarations, one saying their client was always scheduled to be deported on the 7th, and the other saying the date was always the 9th;

• admits that his case record remained in New York, even after he was moved to Louisiana, ensuring that his physical custodian would not be notified of the court order; and

• “lost Mr. Melgar-Salmeron, despite him being detained in an ICE facility,” according to a sworn declaration explaining why he was struck from the plane’s manifest as a “no show.”

“Even if the Government’s contradictory statements are to be believed (and they should be afforded no presumption of accuracy in light of their inconsistencies and reliance upon information of unknown provenance and potentially multiple levels of hearsay), Mr. Melgar-Salmeron (1) was on the ground in ICE custody when the stay was issued at 9:52 a.m.; (2) was on the ground in ICE custody when the stay was communicated to ICE 7 and (3) remained in ICE custody - and had been in the air no more than 25 minutes - when ICE’s internal systems were updated to acknowledge the stay order,” they write, explicitly asking the court to disregard, if not invert the presumption of regularity usually afforded to the government

The Second Circuit invited plaintiff’s counsel to come up with “any proposed next steps for the Court to take.” And HOOBOY, did they ever!

“For the purposes of his return, whether that violation was ultimately caused by perfidy, administrative incompetence or simply the ‘banal horror’ of wrongful removal is irrelevant: the Government must undo its wrongful actions,” they began, adding that “it is for the Government to cure their violation (whether or not they explain how they will accomplish that), rather than for Mr. Melgar-Salmeron to propose next steps.”

That’s a tacit acknowledgment that the Supreme Court’s intervention in Abrego Garcia effectively strips judges of the ability to simply order the government to bring anyone back to the US, despite existing precedent that says the court absolutely has jurisdiction to do so. Instead lower court judges are left to craft their own remedies, most of which involve making it as painful as possible for the government to not do voluntarily what the court can’t order it to do directly.

As in the Abrego Garcia and J.G.G. cases, Melgar-Salmeron’s lawyers suggest that “this Court is empowered - and indeed potentially obliged - to address whether to hold individuals in contempt.” But they go a step further and point to DHS’s confessed inability to keep track of detainees as reason to appoint a special master to investigate “whether the Government is able - or even willing” to do what it promises in immigration cases.

“Further investigation is needed in aid of that question - and the information gleaned thus far shows why an independent fact-finder (who is not limited to accepting answers at face value) is critical in this endeavor,” they continue.

Melgar-Salmeron’s lawyers concede that there’s no precedent for the circuit court to appoint a special master in an immigration case, but nothing in Trump’s war on immigrants has any precedent: “In light of the sui generis nature of this case, a sui generis process under the court’s inherent authority and 28 U.S.C. § 1651 may be called for.”

That citation is to the All Writs Act, a catchall statute which empowers federal judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” It was the implied justification for the Supreme Court when it jumped in to stop deportations in the Northern District of Texas, effectively pre-certifying potential Alien Enemies Act deportees as a class so that the government couldn’t moot the case by disappearing them into a Central American hellhole. It was the explicit basis of Chief Judge George Russell III’s standing order for federal courts in Maryland that imposed a two-day notification requirement before deporting any immigrant with a pending habeas corpus petition. And Judge Fernando Rodriguez, Jr. relied on it when he enjoined the government from transferring anyone subject to the AEA out of the Southern District of Texas (to some place with no pending TRO) as a means of depriving the court of jurisdiction.

In short, this is an invitation to the Second Circuit to use every tool in its arsenal to probe the inner workings of the Department of Homeland Security and figure out what happened here. The direct effect will be to put an end to the shell game the government has been playing since the Supreme Court’s Abrego Garcia intervention. The indirect effect will be that DHS may find the exercise so unpleasant that it just brings this guy home instead of letting some retired federal judge give them a colonoscopy without anesthesia.

It’s definitely worth a try!