https://www.stevevladeck.com/p/138-abrego-garcia-constructive-custody
STEVE VLADECK
APR 05, 2025
138. Abrego Garcia, Constructive Custody, and Federal Judicial Power
Federal courts don't have jurisdiction over foreign prisons. That doesn't mean that they're powerless when the U.S. government wrongly removes someone from the United States.
Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
It’s hard to keep up with the flood of court-related news stories these days. But I wanted to write this morning to flag a remarkable (and time-sensitive) ruling yesterday by Judge Paula Xinis (a federal judge in the District of Maryland), ordering the U.S. government to bring back to the United States Kilmar Armando Abrego Garcia—a Salvadoran national whom the Trump administration wrongly removed from the United States (due to what it claims was an “administrative error”) on March 15, and who has been detained at the notorious “CECOT” mega-jail in Tecoluca, El Salvador ever since. Judge Xinis ordered the government to effectuate Abrego Garcia’s return to the United States by 11:59 p.m. this Monday, April 7. The government has already appealed her ruling to the Fourth Circuit.
When asked about Judge Xinis’s ruling on Friday, White House Press Secretary Karoline Leavitt responded that “We suggest the Judge contact [Salvadoran] President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” Leaving aside the Trump administration’s refusal to take any responsibility for the consequences of its own error, that obnoxious retort is true so far as it goes. The problem is that it just doesn’t go very far. Federal courts may not have the power to compel the release of an individual from a foreign prison, but they unquestionably have the power to order the U.S. government to take whatever steps it can to effectuate the same result. And it seemed worth writing a (short) post explaining why.
The statute that authorizes the federal courts to review petitions for writs of habeas corpus has, as its jurisdictional predicate, the idea that the petitioner is in “custody” that is, in some way, in violation of U.S. law. And although the capacious view of “custody” endorsed by the Supreme Court in 1963 has been narrowed somewhat, it is still settled law that one can be in “custody” without being in the respondent’s “actual, physical custody,” either because they remain subject to conditions of release (like parole), or because they’re being held by someone other than the respondent, but at the respondent’s behest. This idea has become known in the case law as “constructive custody.” As the Sixth Circuit put it in 1979, “It is enough that the imprisoning sovereign is the respondent’s agent; that his liberty is restrained by the respondent’s parole conditions; or that he can point to some continuing collateral disability which is the result of the respondent’s action.”
Consider the case of Ahmed Omar Abu Ali, a U.S. citizen who was being held in Saudi Arabia in 2004. Abu Ali’s parents brought a habeas petition in the D.C. federal district court (naming Attorney General Ashcroft as the respondent), alleging that, although their son was in a Saudi prison, he was being held (and interrogated) only at the behest of the U.S. government as a way of avoiding judicial review in the United States. Judge Bates ruled that, if those allegations ………..
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