4th Circuit Notes Loophole re Garcia

WASHINGTON - April 19, 2025 - PRLog -- Although most of the decision of the Fourth Circuit is very critical of the administration's refusal to do more to return Abrego Garcia to the U.S., it contains an explanation of just how Trump and his associates can end the standoff while not returning him to the U.S., says public interest law professor John Banzhaf.

Indeed, the court's written decision validates as legally permissible an analysis (https://www.washingtonexaminer.com/news/washington-secrets/3380527/returning-kilmar-abrego-garcia-el-salvador-exercise-in-futility-legal-scholars/) Banzhaf published earlier,

The Fourth Circuit states: "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)."

With that language the Fourth Circuit unanimously agreed with law professor Banzhaf's earlier suggestion that a hearing to terminate Garcia's current "withholding of removal" status would provide him with all the due process (procedural protections) to which he in entitled.

Such a hearing could be held via video teleconference (such as Zoom) with Garcia (and perhaps his lawyer) in El Salvador, with the other participants in the U.S.

Since the hearing would be held before an immigration judge who is an employee of the Department of Justice, the judge is quite likely to terminate Garcia's protected status.

Senator Van Hollen, upon returning to the U.S., reportedly (https://www.2news.com/news/national/the-latest-federal-ju...) challenged the government to "put up in court, or shut up."  But Garcia's due process proceeding would, as required by law, not be in a court before an independent judge bound by judicial rules of evidence and procedure, but rather before an employee of the administration seeking to keep him in El Salvador, and with far fewer procedural protections (e.g., hearsay evidence is admissible) than in a court.

Moreover, at the same proceeding, the judge can also order (or presumably simply reaffirm) Garcia's removal from the U.S. since the same regulation also provides that "Removal proceedings may take place in conjunction with a termination hearing scheduled under §208.24(f)."

While the regulation mandates a 30-day notice prior to such a hearing, Garcia is likely to waive this right rather than spend an additional 30 days in confinement.  In any event, those Afghans facing deportations were reportedly (https://southasiatimes.org/afghan-refugees-in-u-s-given-s...) given much less notice.

In short, a single hearing via video teleconferencing from El Salvador could both revoke Garcia's protection against being sent to El Salvador, and also order his removal from the U.S. to that same country where he now finds himself, says Banzhaf, although whether that's the way the Trump administration wishes to proceed is far from clear.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf