Part 2 of 2
RICHARDSON, Circuit Judge, dissenting:
This “dissent makes no effort to justify the President’s invocation of the Alien Enemies Act.” Supra at 21 (Gregory, J., concurring). For this case does not present any questions about the lawfulness of that proclamation or the process due to those removed under it.
Instead, this is a contract case. Appellee, a Venezuelan national proceeding under the pseudonym “Cristian,” was part of a class-wide settlement agreement with the government that it would not execute any “final removal order” he might receive without first adjudicating his asylum application. Without concluding removal proceedings or issuing a final order of removal, the government sent him to El Salvador under the Alien Enemies proclamation. Cristian’s sole claim is that this breached the agreement.
To resolve that legally ordinary claim, the district court imposed a novel injunction. Although in my view Cristian did not show a breach of the agreement, Paragraph 2 of the district court’s order requires the government to “facilitate” his return, and expands upon that verb to “include[] . . . a good faith request by Defendants to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States.”
As I see it, that is not what the district court, this Court, or the Supreme Court approved in Abrego Garcia. Many options may be available to district courts seeking to craft appropriate relief in response to deportations they find unlawful. But directing diplomatic negotiations to the Executive Branch is not among them.
I would stay Paragraph 2 of the district court’s order. Because the panel does not, I respectfully dissent.
I
As Judge Benjamin observes, this case did not begin with the President’s Alien Enemies proclamation—or any of this administration’s acts. It began instead six years ago as a challenge to a USCIS policy statement that adjusted the procedure by which the agency would consider certain asylum applications.
A
Normally, asylum applications by those in removal proceedings are decided by immigration judges. See 8 C.F.R. §§ 208.2(b), 1208.2(b). But by statute, USCIS has jurisdiction over asylum applications by “unaccompanied alien children,” a term of art referring to minors without lawful immigration status who do not have parents or guardians to support them. See 8 U.S.C. § 1158(b)(3)(C) (conferring jurisdiction); 6 U.S.C. § 279(g) (defining “unaccompanied alien child”). Until 2013, USCIS would check whether an asylum applicant was a UAC to determine if it had jurisdiction to decide the application. In 2013, the agency shifted gears and began accepting any determination by another agency that an applicant was a UAC “without another factual inquiry.” Memorandum from Ted Kim, Acting Chief, Asylum Div. 2 (May 28, 2013). Then in 2019, USCIS reversed course and again began making “independent factual inquiries.” Memorandum from John Lafferty, Chief, Asylum Div. 2 (May 31, 2019).
In response to this return to the old policy, plaintiffs sued. They complained on behalf of a putative class that the 2019 reversion violated the Administrative Procedure Act and the Due Process Clause. After granting a TRO, the district court certified the class, and the parties negotiated a settlement agreement in 2024. That agreement covers the class: “all individuals nationwide who [before the 2019 reversion] (1) were determined to be a UAC; and (2) who filed an asylum application that was pending with USCIS; and (3) on the date they filed . . . were 18 years of age or older, or had a parent or legal guardian in the United States . . . and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits.” J.O.P. v. U.S. Dep’t of Homeland Sec., No. 8:19-cv-09144 (D. Md. July 30, 2024), ECF 199-2 at 4.1 Relevant to the lawsuit’s initial aim, the 2024 agreement requires USCIS to make new rules and to accept jurisdiction over, then decide, the class members’ applications. See id. at 6. And relevant here, it provides that “[w]ith respect to any Class Member with a final removal order, ICE will refrain from executing the Class Member’s final removal order until USCIS issues a Final Determination on one properly filed asylum application under the terms of this Agreement.” Id. at 8. In sum, the agreement provides that for class members with final removal orders, the government cannot execute those orders without first adjudicating their asylum claims on the merits.
The agreement also contains an enforcement mechanism. It requires the government to submit compliance reports and allows the class to reply. See id. at 12–13. And it establishes a procedure to resolve disputes. Should one party believe the other to be in breach, the parties must meet and confer to sort things out. “If the dispute cannot be resolved, the complaining Class Member(s) may move to enforce the Agreement” as to themselves, and “Class Counsel may elect to move to enforce the Agreement on an individual or class-wide basis.” Id. at 13. “Once such a motion to enforce is initiated, the complaining Class Member shall not be removed from the United States unless and until the matter has been resolved in favor of Defendants.” Id. When it approved the settlement, the district court also “directed” the parties “to implement and consummate the Agreement according to [its] terms” and retained “jurisdiction to enforce the Agreement.” ECF 205 at 3.
B
Cristian applied for asylum in 2022 when he was already 18. In January 2025, that application remained undecided. But the government took Cristian into immigration custody following his felony conviction for possessing cocaine. The government then began removal proceedings, arguing that Cristian was inadmissible because he was present without having been admitted and because of his cocaine conviction.
While both asylum and removal proceedings pended, the President directed by proclamation that members of Tren de Aragua, a Venezuelan crime syndicate and designated Foreign Terrorist Organization, be removed from the country under the Alien Enemies Act. See Proclamation No. 10903, 90 Fed. Reg. 13033, 13034 (Mar. 14, 2025); see also 50 U.S.C. § 21 et seq. Soon after, Cristian was removed to El Salvador under that proclamation.
Class counsel then contacted the government, arguing that Cristian was a class member and that his removal breached the agreement. The government confirmed that Cristian had been removed to El Salvador but disagreed that this was a breach. So class counsel moved to enforce the agreement, seeking an order that “Defendants shall promptly return Cristian to the United States.” ECF 227-4.
The district court obliged. Despite finding no facts about where Cristian was, whether he was confined, or under whose authority; despite no sound argument from Cristian that his removal “execut[ed]” a “final removal order” that he never had, ECF 199-2 at 8; and despite the Supreme Court’s recent admonition about “the deference owed to the Executive Branch in the conduct of foreign affairs,” Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018 (2025), the district court entered a novel injunction. Under Paragraph 2 of its order, the government must “facilitate Class Member Cristian’s return to the United States”—and “[f]acilitation includes, but is not limited to, a good faith request by Defendants to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States.” ECF 254 at 2. Simply put, the district court ordered the Executive Branch to engage in diplomatic negotiations with a foreign power.
II
This injunction finds no support in precedent or the facts. Though I understand the district court’s unease with the Executive’s recent conduct, its remedy does not fit this case. Cristian presents a contract claim, not a quarrel with the Alien Enemies proclamation. Yet in resolving the contract dispute, the district court entangled the judiciary in the roil of foreign affairs. And it did so based on a claim that does not work: Cristian’s case is difficult to reconcile with the agreement’s text and does not warrant injunctive relief because even winning all he seeks would give Cristian little prospect of real-world benefit.
A
“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 10 Annals of Cong. 613 (1800) (statement of Rep. John Marshall). His power to speak for the country “in the field of international relations” is both “plenary and exclusive.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). This does not mean only the President can make foreign policy. Congress must ratify treaties, confirm ambassadors, regulate foreign commerce, and declare war. U.S. Const. art. II, § 2; art. I, § 8. In this sense, some “[p]residential powers . . . depend[] upon their disjunction or conjunction with those of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).2
But when it comes to negotiating with foreign states, precedent is clear: “The President has the sole power to negotiate treaties.” Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015); see also Curtiss-Wright, 299 U.S. at 319 (“Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”). This power to negotiate, in my view, reaches more than official-channel communiques that result in formal agreements. Diplomacy takes place in a wide array of fora, through many actors within the Executive Branch. See Zivotofsky, 576 U.S. at 13–14. Yet seldom will either nation know whether diplomatic discussions will result in a treaty until those discussions are well underway. There is no such thing as a trifling discussion between heads of state; matters perceived as unimportant in the moment may unexpectedly bloom into trade pacts and environmental protocols—or deteriorate into war. As a practical reality, then, the power to negotiate treaties with foreign states is just the power to negotiate with foreign states.
Despite disagreements about the President’s foreign-affairs power generally, scholars of all stripes have affirmed this narrower principle that the President retains “dominance over diplomatic communications.” Harold H. Koh, The National Security Constitution 81 (1990); see also Edward S. Corwin, The President 184 (4th ed. 1957) (“[T]here is no more securely established principle of constitutional practice than the exclusive right of the President to be the nation’s intermediary in its dealing with other nations.” (emphasis and citation omitted)).
And indeed, some advocates of the Constitution argued that this was the whole point of placing treaty-making power with the Executive. Some thought that “negotiations between nations” required discretion and purposefulness that “numerous bodies” could not easily replicate. 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 119–20 (Jonathan Elliot ed., William S. Hein & Co. 2d ed. 1996) (1891) (statement of William Davie); see also 4 id. at 269 (statement of John Pringle) (similar); The Federalist No. 72, supra, at 486 (Hamilton) (explaining that “[t]he actual conduct of foreign negotiations” “falls peculiarly within the province of the executive department”). Others advanced efficiency rationales. Hamilton opined that Congress would have too little time to legislate unless “the management of foreign negotiations” were assigned to someone else. The Federalist No. 84, supra, at 585–86. Given these views, it is little surprise that the Constitution gave Congress “no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.” Zivotofsky, 576 U.S. at 14.
The “consequence” of this constitutional structure is twofold: “[T]he demand of a foreign nation can only be made on [the President],” and it is the President who holds “the power of demanding a . . . performance” from a foreign government. 10 Annals of Cong., supra, at 613–14. “[I]t is still the Legislative Branch, not the Executive Branch, that makes the law.” Zivotofsky, 576 U.S. at 21. But only the President has the power to speak. Id.
The judiciary plays a limited role in this scheme. The Constitution “grants substantive authority in foreign affairs both to Congress in Article I and to the Executive in Article II. No such substantive power is granted to the Judiciary.” Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113, at *7 (4th Cir. Apr. 7, 2025) (Wilkinson, J., concurring). If either the first or second branch exceeds its constitutional role, we can say so—and must, when a case requires it. But the Constitution does not place the President’s power to speak to a foreign state under the direction of the courts. As Justice Jackson once wrote for the Court,
[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. . . . They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). Following this reasoning, the Court has consistently rebuffed invitations to micromanage the Executive’s diplomatic and national-security activities. See, e.g., Trump v. Hawaii, 585 U.S. 667, 704 (2018); Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 348 (2005); Martin v. Mott, 25 U.S. 19, 30 (1827).
I do not mean to suggest that this case presents only (or any) political questions beyond the cognizance of the judiciary. But the power to decide a case is not the power to impose just any remedy. Foreign diplomacy is entrusted to “the President alone.” Curtiss-Wright, 299 U.S. at 319. And “being entrusted to the executive, the decision of the executive is conclusive.” Marbury v. Madison, 5 U.S. 137, 166 (1803).
Cristian’s briefing all but concedes this. He argues at length that his situation justifies doing something to help him return. But Cristian does not mention—much less defend—the part of the district court’s order that expands upon “facilitate” to “include[] . . . a good faith request by Defendants to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States.” ECF 254 at 2. Instead, he insists without explaining that the injunction is “virtually identical” to the order the Supreme Court approved in Abrego Garcia. Opposition at 21. It is not. Recall, the district court in Abrego Garcia ordered the government “to facilitate and effectuate the return of” Abrego Garcia. Abrego Garcia v. Noem, No. 8:25-cv-00951, ECF 21 (D. Md. Apr. 4, 2025). Unlike the district court here, it did not expand upon what it means to “facilitate.” And given the other word, “effectuate,” it is hard to imagine that the Abrego Garcia district court had such a broad meaning in mind.
Judge Benjamin, too, treats this order like the one the Court approved in Abrego Garcia. Unlike Cristian, she does not reach this conclusion by ignoring the district court’s expansion of “facilitate.” Instead, Judge Benjamin insists that diplomacy is just what “facilitate” means. With respect for my good colleague, I do not agree. On the first appeal to this Court in Abrego Garcia, Judge Wilkinson construed that order to require facilitation only—rejecting the stronger verb for fear that it would “breach[] the sovereignty of another nation” and “intru[de] into what rightly are executive diplomatic powers.” Abrego Garcia, 2025 WL 1021113, at *8 (Wilkinson, J., concurring). And even the facilitation order, he maintained, “must afford [the Executive Branch] latitude as to how the facilitation [could] best be accomplished.” Id.
The Supreme Court seemingly agreed with Judge Wilkinson. It held that “facilitate” was “proper[]” but that “‘effectuate’ . . . may exceed the District Court’s authority.” Abrego Garcia, 145 S. Ct. at 1018. As Justice Sotomayor pointed out, “facilitate” is a well-known term among immigration-related agencies. See id. at 1019 (Sotomayor, J., respecting the Court’s disposition). The policy document Justice Sotomayor relied on defines that term this way:
To engage in activities which allow a lawfully removed alien to return to the United States (such as by issuing a Boarding Letter to permit commercial air travel) and, if warranted, parole the alien into the United States upon his or her arrival at a U.S. port of entry. Facilitating an alien’s return does not necessarily include funding the alien’s travel via commercial carrier to the United States or making flight arrangements for the alien.
U.S. Immigr. & Customs Enf’t, Directive 11061.1, Facilitating the Return to the United States of Certain Lawfully Removed Aliens § 3.1 (2012). Needless to say, none of these activities resembles court-commanded negotiation with a foreign state. Given this established usage and the Court’s apparent accord, I would not read the Court’s order to give “facilitate” so much breadth.3
In an appropriate case, then, a district court may “properly require[] the Government to ‘facilitate’ [someone’s] release from custody in El Salvador.” Abrego Garcia, 145 S. Ct. at 1018. And as a panel of this Court explained on remand in Abrego Garcia, that is not a toothless remedy: “Facilitate” is an “active verb” that “does not . . . allow the government to do essentially nothing.” Abrego Garcia v. Noem, 2025 WL 1135112, at *1 (4th Cir. Apr. 17, 2025). It may cover more than “remov[ing] . . . domestic barriers.” Id. (emphasis deleted). We do not yet know just how far “facilitate” may legitimately reach.
But however far “facilitate” goes, it cannot encompass an order requiring specific diplomatic communication from the Executive Branch. So far as I can tell, no district court has ever done such a thing. And when district courts have tried to enjoin the Executive’s foreign-affairs conduct, they have been met with swift rebuke. See, e.g., Holtzman v. Schlesinger, 414 U.S. 1304, 1315 (1973) (Marshall, J., in chambers) (“[T]he proper response to an arguably illegal action is not lawlessness by judges.”).
The district court did not have to take that road here. It had options short of ordering the Executive to contact a foreign government and request Cristian’s release. As evidence, just consider the district-court proceedings on remand in Abrego Garcia itself. The court (and the parties) have spent weeks toiling on detailed discovery so that the court can identify an appropriate remedy with the benefit of full information—all to fulfill the Supreme Court’s mandate to “clarify” the court’s order and give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Abrego Garcia, 145 S. Ct. at 1018. Troubled as it may have been by the President’s actions here, this district court should not have intruded into the Executive’s prerogative without some similar process.
B
Caution was particularly warranted here because Cristian’s claim is dubious on the merits. To start, consider what this case is not about. Cristian has not challenged here the legitimacy of the President’s Alien Enemies Act proclamation. He has not sought “‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act” or whether he “is in fact an alien enemy.” Trump v. J.G.G., 145 S. Ct. 1003, 1006 (2025) (quoting Ludecke v. Watkins, 335 U.S. 160, 163, 172 & n.17 (1948)). Nor has he claimed that the circumstances of his removal raise due process problems. See id. (citing Reno v. Flores, 507 U.S. 292, 306 (1993)). Instead, he argues only that his removal breached a settlement agreement.
That agreement has nothing to say about his removal under these circumstances. We can presume that Cristian is a member of the settlement class. But the agreement does not give class members a general right not to be removed from the country. Instead, it provides that for any class member who has a “final removal order, ICE will refrain from executing the Class Member’s final removal order.” ECF 199-2 at 8.
This phrase carries a narrow, specialized meaning. “[I]n the deportation context, a ‘final order of removal’ is a final order ‘concluding that the alien is deportable or ordering deportation.’” Nasrallah v. Barr, 590 U.S. 573, 579 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)). In fact, the section of the Immigration and Nationality Act on which Nasrallah relies created the term by express definition. And by limiting the term to apply “in this chapter”—a chapter containing all and only the major immigration provisions in Title 8—the statute makes clear that “final order of removal” is a creature of Title 8. 8 U.S.C. § 1101(a).
The Supreme Court and this one thus recognize that “final order of removal” is a term of art. It is not a generic reference to just any order under which someone might be removed; it specifically refers to the product of removal proceedings conducted according to Title 8. See, e.g., Monsalvo Velázquez v. Bondi, 145 S. Ct. 1232, 1239–40 (2025). And as Nasrallah says, a “final order of removal” need not conclusively authorize the government to remove someone from the country. Often, such an order only settles “removability” but may not result in actual removal because withholding or other proceedings are ongoing. Salgado v. Garland, 69 F.4th 179, 181–82 (4th Cir. 2023) (emphasis omitted); see also Johnson v. Guzman Chavez, 594 U.S. 523, 539 (2021).
Removal orders under Title 8 are just one of many ways the government can compel an alien’s departure. For instance, the government can extradite those wanted abroad. See 18 U.S.C. § 3181 et seq. During the pandemic, it removed aliens under provisions in Title 42. See generally Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022). And even in a Title 8 proceeding, the government can grant voluntary departure “in lieu of removal.” See 8 U.S.C. § 1229c(a)(1), -(b)(1). Given that the expulsion of aliens comes in many forms but “final order of removal” consistently refers to only one of them, it is implausible to read the settlement agreement’s use of the phrase to reach just any order under which someone is removed.
The agreement itself reinforces this distinction. Once a class member has filed a motion to enforce, the agreement does categorically provide that “the complaining Class Member shall not be removed from the United States.” ECF 199-2 at 13. Of course, if the earlier section already categorically forbade the government to remove class members, no matter the procedure, this extra provision would be superfluous. In the narrow situation where the parties have already begun to litigate the scope of the agreement, though, it makes sense to automatically stay any removal. But this affords no help to Cristian, who was removed weeks before moving to enforce the agreement.
Judge Benjamin’s ordinary-meaning approach buckles under the weight of this context. Of course, Judge Benjamin is right that by default, we read contracts as though they speak ordinary language. But contracts often use terms of art in addition to laymen’s terms—not least because without them, “[c]ontracts would become massive and unwieldy treatises.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 47 (1998). Just as with statutes, “the context of these words—the water in which they swim—indicates” whether the parties “used them as terms of art.” United States v. Hansen, 599 U.S. 762, 775 (2023). And it is no surprise that sophisticated parties settling an important question in a field rife with specialized language would use that language to make their agreement. Cf. Corning Glass Works v. Brennan, 417 U.S. 188, 202 (1974) (“While a layman might assume that time of day worked reflects one aspect of a job’s ‘working conditions,’ the term has a different and much more specialized meaning in the language of industrial relations.”). For this term, settled usage and the rest of the agreement together leave little doubt that “final removal order” refers to the product of Title 8 proceedings.
Even supposing “final removal order” reached beyond Title 8, fitting Cristian’s situation into the agreement requires a second premise: that “the President’s AEA Proclamation” is a final removal order. Opposition at 12. But this too strains the text and context of the agreement. The agreement does not talk about removal orders in the abstract; the antiremoval provision says that it applies to “any Class Member with a final removal order.” ECF 199-2 at 8 (emphasis added); see also id. (forbidding ICE to “execut[e] the Class Member’s final removal order” (emphasis added)). So the orders contemplated by the agreement are specific to particular class members. Of course, the generalized proclamation is not.
*
At bottom, the district court imposed an injunction that exceeds its power. And it did so to remedy government action that did not breach the agreement—unlawful though it may have been in other ways. Because the injunction goes too far, and the government’s success on the merits is therefore all but assured, I would grant a stay.4
III
If any doubt remained, the equities confirm that this injunction must be stayed.
A
To start, it is hard to see how this order could meaningfully benefit Cristian. Since his removal, USCIS has made clear that his asylum application has no chance of success. And even if Cristian got asylum, he would remain removable anyway. Those circumstances make it hard to justify equitable relief—much less this equitable relief.
Federal courts wielding the equity powers conferred by Article III and the first Judiciary Act may not “restrain an act” that does not threaten substantial “injurious consequences.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982) (quoting Consol. Canal Co. v. Mesa Canal Co., 177 U.S. 296, 302 (1900)). “An injunction should issue only where the intervention of a court of equity is essential,” which means that without an injunction the claimant will sustain “irreparable injury.” Id. at 312 (quotation omitted). For this reason, an injunction may not sweep more broadly than necessary to stave off that injury. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 160–61 (2010); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994); Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Cristian’s claim and the district court’s order fail this standard twice over. First, Cristian seemingly cannot get asylum. The evidence appears uncontroverted that he is a member of Tren de Aragua. Tren de Aragua is a designated Foreign Terrorist Organization. And membership in a Foreign Terrorist Organization is a categorical bar to asylum. 8 U.S.C. § 1158(b)(2)(A)(v) (authority to grant asylum “shall not apply” to a knowing member of a terrorist organization—someone falling within subclause (VI) of section 1182(a)(3)(B)(i)). Reflecting this obligation to deny asylum to members of terrorist groups, USCIS has indicated that Cristian’s “application for asylum would be denied.” Motion at 2. True, Cristian’s theory is not just that he cannot get asylum without returning to the country but that returning would give him a chance to participate in the asylum-application process. Yet asylum is a matter of grace, not right; it is up to the Executive Branch’s “discretion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987); see also 8 U.S.C. § 1158(b)(1)(A) (providing that the Executive “may grant asylum”). And here, “the asylum decision has already been made,” which means “those procedures would be futile.” Huisha-Huisha, 27 F.4th at 731.5
Cristian replies that he could contest this mandatory bar in an asylum interview by offering evidence that he is not associated with Tren de Aragua. Maybe so. But he gives us no reason to think that he has persuasive arguments or evidence that would likely change the result. The government’s evidence that Cristian belongs to Tren de Aragua is no doubt substantial enough to withstand judicial review of the agency’s decision. And even if it were not, “the Attorney General’s discretionary judgment whether to grant [asylum] shall be conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4). USCIS has indicated that alongside the mandatory terrorism bar, it would deny Cristian asylum as a matter of its discretion because of his criminal record—a record that he does not dispute.
Second, even were Cristian to receive asylum, that status would not shield him from removal. Just as membership in a terrorist organization presents a categorical bar to asylum, it is a ground for revoking asylum already granted. Id. § 1158(c)(2), -(b)(2)(v). Given this, there would be little point returning Cristian to the United States to adjudicate a doomed request for executive grace—and certainly no prospect of real-world benefit solid enough to support the district court’s tall order.6
To be sure, Cristian is correct that we sometimes enforce procedural rights for their own sake, independent of the substantive benefits that may follow. At the same time, the federal courts will not normally remedy the “deprivation of a procedural right without some concrete interest that is affected by the deprivation.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). The procedure must be tethered to some substance, however thin. And in equity, which does not take litigants’ representations for granted the way standing does, the question posed to the district court’s discretion is not just whether a defendant has broken the law but whether the remedy proposed is necessary to prevent real-world harm. Without a reason to think more process would change USCIS’s mind, Cristian’s asylum-process claim does not justify resort to equity—much less equity that directs the Executive’s diplomatic communications.
In turn, without a plausible claim to asylum, Cristian does not assert an injury that shifts the equities in his favor. The Supreme Court has told us that “the burden of removal alone cannot constitute” the sort of “irreparable injury” that equity requires. Nken v. Holder, 556 U.S. 418, 435 (2009). And although the district court apparently assumed that Cristian is confined—which is likely true7—it did so without either evidence or a clear representation from either party about where he was or under what conditions. See ECF 253 at 4. In all events, any cause of action for these sorts of injuries themselves (rather than the asylum consequences that they may bring) does not arise from the agreement here.8
B
On the other side of the ledger lie weighty government interests. Ordering the government to negotiate threatens the foreign policy interests of the United States. The problems of foreign affairs are “important, complicated, [and] delicate.” Curtiss-Wright, 299 U.S. at 319. Goodwill from foreign states is hard-won but easily lost. Toward the end of the Washington Administration, then-Senator and future-Chief Justice Oliver Ellsworth exhorted the Senate, “A correspondence with foreign nations [is] a business of difficulty and delicacy—the peace and tranquility of a country may hinge on it.” 5 Annals of Cong. 32 (1796). In line with this maxim, federal courts have been quick to see danger in this area. See, e.g., Arizona v. United States, 567 U.S. 387, 395 (2012); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 385–86 (2000). As then-Judge Scalia warned, “extend[ing] judicial power into” the realm of foreign affairs is risky because “we do not know, and have no way of finding out, what serious harm we may be doing.” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1551 (D.C. Cir. 1984) (Scalia, J., dissenting); see also Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 194 (1983) (recognizing courts’ limited “competence in determining precisely when foreign nations will be offended by particular acts”).
This danger looms above more everyday concerns—concerns that usually warrant a stay by themselves. Enjoining the government from enforcing duly enacted policies always counts as irreparable injury. Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The harm compounds when, as here, the injunction not only prevents prospective government action but orders a costly about-face. And the interest that injury impairs, “[p]rotection of the foreign policy of the United States[,] is a governmental interest of great importance, since foreign policy and national security cannot neatly be compartmentalized.” Haig v. Agee, 453 U.S. 280, 307 (1981).
Given all this, I see the government’s burden as met. See Nken, 556 U.S. at 426. The government should prevail on the merits because this injunction exceeds the district court’s power and because Cristian’s claim does not warrant it. Moreover, the injunction threatens important government interests that are easier to harm than heal, and it does so without offering Cristian any meaningful benefit in return. That is not how courts sitting in equity are supposed to proceed. I would stay the injunction.9
* * *
This is not a case about whether the President’s Alien Enemies proclamation fits the statute. This is not a case about what process the Constitution and laws may afford those removed under that proclamation. And this is not a case where the courts are asked to thwart an effort “to stash away residents of this country in foreign prisons.” Abrego Garcia, 2025 WL 1135112, at *1. It is instead a contract case. An important contract case, perhaps, but not a case where either the Executive’s powers or Cristian’s liberties will be finally decided.
Still, it is in this case that the district court has directed the Executive to engage in specific diplomatic negotiations with a foreign power. Despite serious merits problems and little reason to think its order would help Cristian, the district court entered a more potent injunction than any other court has in the numerous Alien Enemies cases pending across the country. By contrast, consider Abrego Garcia, where the parties and court remain dutifully preoccupied with crafting appropriate relief that still gives “due regard for the deference owed to the Executive Branch.” 145 S. Ct. at 1018. In cases like these, where “the branches come too close to grinding irrevocably against one another,” Abrego Garcia, 2025 WL 1135112, at *3, caution should be our watchword.
As I would stay Paragraph 2 of the district court’s order, I respectfully dissent.
_______
Notes:1 By including only persons who filed for asylum after turning 18 or uniting with parents or guardians in the United States, the class strictly excludes unaccompanied alien children. So the settlement provides the protections afforded those who are unaccompanied alien children only to those who were wrongly determined at some time to qualify.
2 Reasonable people disagree about just how much the content of foreign policy depends on Congress. The Founding generation certainly did. Compare 7 The Works of Alexander Hamilton 76–117 (John C. Hamilton ed., 1851), with The Federalist No. 75, at 505–06 (Hamilton) (Jacob E. Cooke ed., 1961), and 6 The Writings of James Madison 138–88 (Gaillard Hunt ed., 1906); see also 10 The Writings of Thomas Jefferson 410–11 (Albert Ellery Bergh ed., 1907) (taking a middle position).
3 My colleague emphasizes the requirement that the government generally act in “good faith.” Supra at 14 (Benjamin, J., concurring) (quoting ECF 254 at 2). In isolation, I agree that the Government should act in good faith. But my concern is the specific act that good faith modifies: “request by Defendants to the government of El Salvador to release Cristian to U.S. custody.”
4 For its part, the government floats a more fundamental reason for us to suspend the district court’s order. In its view, that court lacked jurisdiction because “[c]hallenges to removal under the AEA . . . must be brought in habeas.” J.G.G., 145 S. Ct. at 1005; see Reply at 6 & n.2. I have my doubts. To begin, although the Court in J.G.G. quoted a case that uses the word “jurisdiction,” context makes clear that its habeas-only holding sounded in “venue.” Id. Rumsfeld v. Padilla does indeed say that “for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.” 542 U.S. 426, 443 (2004). But this strikes me as “a characterization left over from days when we were less than meticulous in our use of the term ‘jurisdictional.’” Hamer v. Neighborhood Housing Servs., 583 U.S. 17, 27 (2017) (quotation omitted). And venue, of course, can be waived—which scuttles the government’s late-breaking bid to avoid the merits.
Plus, whether construed as jurisdiction or venue, the government’s argument cannot account for Abrego Garcia. There, as in J.G.G., a plaintiff challenged his confinement and removal under the AEA. Abrego Garcia, 145 S. Ct. at 1018. And like J.G.G., Abrego Garcia sought an injunction—not habeas. If the federal courts had no jurisdiction to hear such claims, the Supreme Court’s Abrego Garcia opinion had no reason to opine on whether the district court’s injunction breached Article II.
J.G.G.’s reliance on the Heck bar and its kin gives us another good reason to think it is not jurisdictional: The Heck bar itself is not jurisdictional. See, e.g., Brunson v. Stein, 116 F.4th 301, 307 n.8 (4th Cir. 2024). Like venue, it is a waivable defense. It would be strange to read J.G.G. as weaving a jurisdictional quilt from this nonjurisdictional fabric.
With these principles in mind, it becomes apparent that despite their facial similarities, J.G.G.’s and Abrego Garcia’s claims are legally quite different. The J.G.G. plaintiffs challenged their confinement by federal officers who planned to deport them. Proving that they could not be removed would “‘necessarily imply the invalidity’ of their confinement,” so their claim triggered the Heck bar and they needed to use habeas. J.G.G., 145 S. Ct. at 1005 (quoting Nance v. Ward, 597 U.S. 159, 167 (2022)). By contrast, Abrego Garcia sued only after he had left U.S. custody. To the extent he challenged a confinement, it was not confinement by federal officers pending his removal but rather his postremoval confinement in El Salvador. Given this, he could seek an injunction requiring federal officers to facilitate his return.
5 Judge Benjamin objects that the indicative asylum decision is a “‘litigation-driven’ document,” “not an authentic change in factual circumstances.” Supra at 19 (quoting Reply at 21). But whatever weight we give what USCIS has said so far, it is also true that based on the evidence before us, Cristian is apparently ineligible for asylum. And if so, USCIS has no choice but to do what it has told us it intends to do.
6 The Alien Enemies Act may permit removal without revoking asylum. The asylum statute provides that once someone has asylum, unless it is revoked, “the Attorney General . . . shall not remove or return the alien to the alien’s country of nationality or, in the case of a person having no nationality, the country of the alien’s last habitual residence.” 8 U.S.C. § 1158(c)(1). But the Alien Enemies Act provides that “all” alien enemies “who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed.” 50 U.S.C. § 21 (emphasis added). By its text, then, the Alien Enemies Act applies to alien enemies who have received asylum. Whether the asylum statute supersedes this sweeping language is unsettled. But the asylum statute’s seemingly categorical language—“shall not remove”—may preclude only removal under Title 8, not removal generally. See, e.g., Castaneda-Castillo v. Holder, 638 F.3d 354, 360–61 (1st Cir. 2011) (observing that so long as the relevant extradition treaty is “silen[t] on the issue, the Secretary of State may, in her discretion, order the extradition of an individual . . . even if that individual is granted asylum”).
7 The parties’ representations have shifted on this front, both below and on appeal. In the introduction to its motion to enforce below, class counsel asserted that ICE “removed Cristian . . . to a maximum security prison in El Salvador.” ECF 227-1 at 1. Yet the background section of that brief did not repeat or explain this claim; it only said that Cristian had been “removed . . . to El Salvador.” Id. at 5. Counsel neither offered a citation nor said which prison or whether Cristian was still there. Now, counsel’s position is that Cristian “has remained incarcerated in El Salvador at CECOT since” his removal, and so “for two months . . . has been consigned to a notorious supermax prison known for widespread human rights violations.” Opposition at 9, 21 (quotation omitted). The citation offered for this premise is the government’s stay motion—which, unsurprisingly, says no such thing. The government says only that Cristian “is currently in the custody of El Salvador.” Motion at 7. Yet the government itself gets this premise not from a declaration by its personnel but from Cristian’s motion below. And the cited page says nothing about prison—just that “ICE removed Cristian to El Salvador.” ECF 227-1 at 5. By a telephone-game string of citations, a claim that Cristian was removed two months ago became a claim that he is in CECOT today. Again, this may well be true. But if it is, I fail to see how class counsel knows it. In my view, the district court should have collected more information and made findings of fact—as the district court in Abrego Garcia is still doing—before imposing an injunction.
8 This is not to say that Cristian cannot challenge his removal and detention, if any, in another proceeding. Like anyone removed under the Alien Enemies Act, Cristian is entitled to the full measure of protection afforded by our due process jurisprudence. As in Abrego Garcia, if Cristian is confined, he could seek injunctive relief on the grounds that his removal was erroneous or that the proclamation is unlawful. Important as those challenges may be, they are not presented here.
9 I take no position on how the district court should have resolved the government’s Rule 60(b) motion. Only the government’s stay motion is before us now, and that aims at the injunction itself—not the district court’s refusal to vacate it.
