Kilmar Abrego Garcia's civil judge was scheduling November hearings when news reports said the government was planning to deport him to Liberia in 72 hours. Judge: if that's true, why are we scheduling anything? Government assured her they'd wait for her permission. She also demanded an answer on why they weren't sending him to Costa Rica, which he requested. Nobody had a good answer. The timing also bothered her: trying to deport him right before his criminal evidentiary hearing "did not pass the smell test."
Bryan gave an unscripted update on the Kilmar Abrego Garcia civil case (Garcia v. Noem, 8:25-cv-02780). He noted that much of the record was under seal, requiring him to combine docket reading with reporting from journalists who were present for oral orders. The hearing: the parties came in prepared to schedule November hearings, and the judge interrupted — she'd seen news reports that the government was planning to deport Abrego Garcia to Liberia within 72 hours. She confronted the parties directly: if that's happening, why are we doing any of this? The government assured her they would not move without her permission. She then pressed them on Costa Rica: Abrego Garcia had requested to be sent there; why was the government proposing Liberia? No satisfying answer was provided. Separately, Abrego Garcia had filed an asylum claim and a "credible fear" filing — a claim that being sent to Liberia specifically would put him in danger. This must be adjudicated before removal to that country. The civil judge also found the timing suspicious: attempting to deport him right before the evidentiary hearing in his criminal case "did not pass the smell test." The government's strategy — trying to make him disappear before civil and criminal proceedings reached their conclusions — was visible enough that two judges in two separate proceedings had flagged it.
Preliminary injunction (civil stay against deportation)credible fear filingasylum"smell test" judicial skepticism of government timingparallel civilcriminal proceeding interaction
Constitutional question: The civil injunction protecting Abrego Garcia from deportation reflects the Fifth Amendment's due process guarantee: a person in US custody with pending legal proceedings has a protected interest in not being removed before those proceedings conclude. The government's repeated attempts to deport him before either case finishes raises a structural constitutional concern: using executive removal power to moot judicial proceedings is an attack on the court's authority to adjudicate cases before it. The civil judge's "smell test" language captures this constitutionally: a government that has been ordered to return someone from El Salvador, then charged them with no evidence, now wants to send them to Liberia instead of the country they requested — the pattern is not one of good-faith compliance.
The Robert F. Kennedy Human Rights organization is suing the State Department for the records of the US-El Salvador deal that set up CECOT — what exactly did we agree to before we started sending people there? Everything is under seal. The government tried to use the shutdown to stay the case. Plaintiffs: the shutdown only matters if your lawyers have to work on this. Un-stay it and they'll have to. Judge agreed. Case moves forward.
RFKHR v. DoS (1:25-cv-01774) is a FOIA/records action brought by the Robert F. Kennedy Human Rights organization (named after RFK Jr.'s father, not RFK Jr.) seeking the records of the agreement between the US government and El Salvador that authorized the transfer of detainees to CECOT (El Salvador's infamous maximum-security detention facility). Bryan: "I really wanna know more about it and everything is filed under seal and hidden, very hush hush." The government had moved to stay the entire case during the government shutdown. Plaintiffs pushed back with a sharp argument: the only reason the government claimed it couldn't work on the case was the shutdown; if the case is un-stayed, the government lawyers will simply have to work on it during the shutdown; whether the case is stayed or not is effectively within the government's control — they could end the shutdown. From the plaintiffs' brief (Bryan quoted): "Defendants claim this case can wait. Wrong again. As plaintiffs have shown the unconstitutional and otherwise unlawful agreement to render people into U.S. funded detention in El Salvador remains in place and continues to harm plaintiffs and others." The judge agreed and removed the stay. Defendants have until November 12th to produce whatever the next required filing is.
FOIArecords productiongovernment shutdown stay motionmotion to un-stay
Constitutional question: The constitutional stakes underlying RFKHR v. DoS are significant even though the immediate dispute is procedural. The Fifth Amendment's due process protection extends to individuals in US custody regardless of where they are held; if the US contracted with El Salvador to hold individuals in conditions that would be unconstitutional in the US, that contract may itself be constitutionally infirm. The records litigation is the precondition for evaluating that question: you cannot assess the constitutionality of what you agreed to until you know what you agreed to. The shutdown-as-delay tactic also has a constitutional dimension: using a legislative-executive funding failure to stall judicial oversight of executive conduct converts the shutdown into an executive impunity shield.
Newsom v. Trump (the district court case) had been frozen because of an appeal. The plaintiffs said: that appeal is about one specific issue — but there are other issues moving forward. Can we un-pause on those? A 9th Circuit three-judge panel agreed. An appeal of a specific interlocutory order doesn't freeze the whole case. Resume.
Newsom v. Trump (3:25-cv-04870) is the district court proceeding underlying the 9th Circuit case (25-3727) challenging the federalization of the California National Guard. The district court case had been stayed while a specific issue — likely a preliminary injunction or TRO — was being appealed to the 9th Circuit. The plaintiffs argued that the appeal only covers that specific interlocutory order, not the entire merits of the case; the district court should keep moving on the issues not covered by the appeal. A three-judge 9th Circuit panel agreed: an interlocutory appeal of a specific order (a TRO or PI) does not divest the district court of jurisdiction over the rest of the case. The district court should resume proceedings on the merits while the specific PI issue remains on appeal. Result: the Newsom district court case should begin moving forward again, even as the broader 9th Circuit case on the PI continues on its own appellate track.
Interlocutory appealdivestiture of district court jurisdictionjurisdiction over non-appealed portions of caseRule 65 preliminary injunction
Constitutional question: The procedural ruling has constitutional significance for the National Guard federalization question: the faster the district court can develop a full merits record on Newsom's claims (including the statutory interpretation of § 12406 and the factual predicate), the sooner courts can answer the underlying constitutional question about state sovereignty over the Guard on a complete evidentiary basis rather than a preliminary one. Delay-by-appeal is a litigation tactic; the 9th Circuit panel's ruling prevents it from working here.
