Disappeared: Pursuing Legal Return of the Wrongfully Deported Against the Political Backdrop of “Securitization.”
by Dr. Alicia Triche
Featured authority:
Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025)
J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)
The legal authority to order return of a wrongfully deported individual is largely rooted in the concept of “nunc pro tunc,” an equitable remedy which allows that a “judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up.”[1] As the Second Circuit held in Edwards v. INS, nunc pro tunc authority is “a means of rectifying error” that “has a long and distinguished history in the field of immigration law.”[2] In fact, said authority is explicitly invoked in the very first headnote, in the very first reported immigration decision. 85 years ago, in Matter of L, the Attorney General invoked equitable power to back-date permission to enter for a trouble-making, but (at least according to the A.G.) ultimately deserving Yugoslavian. 1 I&N 1 (A.G. 1940).
Fast-forwarding into the modern era, nunc pro tunc authority has proved needed to address wrongful removals in numerous contexts. Since 1996, when IIRIRA[3] established that filing a petition for review “does not stay the removal of an alien pending the court’s decision…unless the court orders otherwise,”[4] removals that are later deemed wrongful have occurred at all stages of Court of Appeals proceedings. In such instances, including those where removal happened before a meritorious Stay was ultimately granted, attorneys have successfully sought the return of wrongfully deported petitioners.[5] Now, of course, the occurrence of illegal deportation has expanded outside of the context of individual appeals, catapulting the concept of its judicial correction into the mainstream of public consciousness.
When a court orders the government to attempt the return of a wrongfully deported individual during pending legal proceedings, it effectively rules that a stay of removal is merited nunc pro tunc; and, then, it simultaneously invokes an inherent equitable authority to restore the status quo. As the Supreme Court observed in 1996, in Peacock v. Thomas,[6] a federal court must have “inherent power to enforce its judgments,” lest its abilities become “entirely inadequate to the purposes for which it was conferred by the Constitution.” Although its precise contours are still fuzzy—and I must defer here to a braver soul to delve into the whole “facilitate” v/s “effectuate” arena—the Supreme Court has now definitively laid to rest any doubt that a Court has inherent authority to order tangible redress against wrongful deportation. In Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025), the Court held that, because “removal to El Salvador” was “illegal,” the District Court “properly” required the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to “ensure that his case is handled as it would have been had he not been improperly sent….”[7]
It now being crystal clear that courts possess power to order attempted return, it will be up to litigators to ask them to use it. May 6, 2025, Law360 reported that a Baltimore federal judge had rejected the government’s request to vacate her ruling ordering the return of a 20-year-old Venezuelan asylum-seeker who had been sent to CECOT under the Alien Enemies Act, despite being a member of a class action settlement agreement protecting unaccompanied minors.[8] In the opposite direction, on March 27, 2025, in an unpublished order, the Fifth Circuit Court of Appeals denied, without comment, a motion for a retroactive stay and order of return. The request had been made by a Central American man who was initially granted Torture Convention relief by a Louisiana Immigration Judge, but was deported before he could apply for a Stay of Removal.[9]
Of course, these are but two small anecdotes amidst a flowing sea of removals. This leads me to the point that the legal challenges I have referenced above are occurring in a highly political context: attempted “securitization.” Securitization is an international relations concept developed by a group sometimes referred to as the Copenhagen School. Under securitization, it is not the objective level of danger in a purported threat (in this case, “illegal immigrants”—or, really, just “immigrants”) that takes it into the discursive realm national security. Instead, it is the nature of the discourse that surrounds it. “The issue becomes a security issue”, the authors explain, “not necessarily because a real existential threat exists but because the issue is presented as such a threat.”[10]
Again, this process, through which a “speech act” creates a security issue, is referred to as “securitization”.[11] It a method through which government actors move an issue out of the frame of “normal politics”[12] in order to claim extraordinary powers. By invoking “security,” says Barry Buzan, “a state representative declares an emergency condition, thus claiming a right to use whatever means are necessary to block a threatening development.”[13] But securitization is only successful if it is accepted by a large enough portion of its audience. Since it is a speech act, it can also be resisted by speech—and, from the point of view of immigration litigators, that can mean continuing to assert the rule of law in court, including the presentation of legal arguments for the return of wrongfully deported persons.
When viewed through the illuminating lens of securitization, Judge Fernando Rodriguez, Jr.’s order in J.A.V. v. Trump is especially remarkable.[14] Throughout history, US courts have been exceedingly reticent to delve into the substantive boundaries of security-related issues, even where it involves purely legal questions. It is thus remarkable that a conservative judge, sitting in Brownsville, has deliberated the substantive definitions of “invasion” and “predatory incursion,” and held that the Executive has utilized the incorrect legal standard to invoke the Alien Enemies Act.[15] It is truly a Nixon-goes-to-China moment, and it is a reflection that securitization is not automatically successful just because it is attempted. This is what all proponents of the rule of law, including immigration litigators, must keep in mind, when facing a system under siege, in this extraordinary era.
[1] Mitchell v. Overman, 103 U.S. 62, 64–65 (1881).
[2] Edwards v. INS, 393 F.3d 299, 308–309 (2nd Cir. 2004).
[3] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996).
[4] 8 U.S.C.A. § 1252(b)(3)(B) (Westlaw 2025.)
[5] See, e.g., Herrera-Meza v. Sessions, No. 18-70117, Dkt. 17 (9th Cir. Sept. 18, 2018) (granting a late motion to reconsider a judicial stay denial and ordering individual’s return to restore status prior to deportation); W.G.A. v. Sessions, No. 16-4193, Dkt. 65 (7th Cir. Mar. 19, 2018) (granting stay that becomes effective on “reentry to the United States pending resolution of [the] petition for review”). The author thanks Trina Realmuto at the National Immigration Litigation Alliance for calling her attention to these orders.
[6] 516 U.S. 349, 356 (1996); see also Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998), citing Chambers v. NASCO, Inc., 501 U.S. 32, 42 (1991) (recognizing the existence of “implied power squeezed from the need to make the court function”; Nken v. Holder, 556 U.S. 418, 426 (2009) (“An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as ‘inherent,’ preserved in the grant of authority to federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”.)
[7] 145 S.Ct. at 1018.
[8] Jared Foretek, Judge Won’t Reverse Order to Bring Back Asylum-Seeker (Law 360 May 6, 2025).
[9] (Order on file with the author; further details redacted for confidentiality).
[10] Barry Buzan, Ole Wæver and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Reiner Publishers Boulder CO 1998) 24.
[11] See, e.g., Buzan Wæver and de Wilde 25.
[12] Buzan Wæver and de Wilde 24 (international quotations omitted).
[13] Buzan, Wæver and de Wilde 21 (citation omitted).
[14] J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)
[15] Id. at 30–31.