Word of the Week: ‘Scrivener’ makes an appearance in the saga of Kilmar Abrego Garcia

By Harmeet Kaur, CNN

(CNN) — Hours after a federal judge ordered Kilmar Abrego Garcia released last week, an immigration judge — who is a Department of Justice employee — entered a document into the record correcting what they called a “scrivener’s error.”

What the immigration judge was describing as an error was the absence of any deportation order for Abrego Garcia, a Salvadoran national who entered the US illegally around 2011 and whose detention and now-reversed rendition to Venezuela made him a public barometer for how far the Trump administration can push its aggressive anti-migrant agenda. Despite years of immigration proceedings dating back to 2019 and months of back-and-forth from Trump officials about which country he should be deported to, US District Judge Paula Xinis recently found that no final deportation order seemed to have been issued for Abrego Garcia in the first place.

The absence of this essential document, the immigration judge wrote in the December 11 filing, was a mere oversight. The official who was adjudicating Abrego Garcia’s case in 2019 had, the filing claimed, “erroneously omitted” the deportation order, so this new immigration judge — ostensibly having noticed this six years later — was now amending the record to retroactively add language ordering Abrego Garcia removed to El Salvador.

Specifically, the immigration judge invoked the narrow legal doctrine of the scrivener’s error. A scrivener — from the Latin word scriba, meaning scribe, via Norman French — is someone who transcribes official documents, like the titular character of Herman Melville’s short story “Bartleby, the Scrivener.”

While Bartleby’s occupation is all but obsolete today, the term endures to refer to mistakes in legal documents “of a very small kind that are easily reformed, involving the misprinting of a word or that sort of thing,” said Bryan Garner, a lexicographer and co-author of “Reading Law: The Interpretation of Legal Texts” with former Supreme Court Justice Antonin Scalia.

A scrivener’s error is typically a typo, like a lawyer or legislator writing “third partly” instead of “third party” or using the word “insure” in place of “ensure.” When this kind of minor mistake occurs, when it’s clear from context that the text differs from what the writer meant, judges can correct it, explained Ryan Doerfler, a professor of law at Harvard University who published a law article about the scrivener’s error.

But in Doerfler’s estimation, the absence of a deportation order in Abrego Garcia’s case is no scrivener’s error. Evan Bernick, an associate professor of law at Northern Illinois University, agreed: “You’re not fixing a typo. You’re literally creating a new order, out of nothing, that affects somebody’s rights.”

Garner declined to comment on the specifics of Abrego Garcia’s case, though he suggested the claim wouldn’t hold up in court. “For an appellate court to declare as a matter of law that something is a scrivener’s error that is anything beyond a mere, small inadvertence would be extraordinary,” he said.

For now, Judge Xinis has blocked the Trump administration’s attempts to re-detain Abrego Garcia. Though she didn’t weigh in on the newly created deportation order, she repeatedly set it off in quotes, referring to it as a “new ‘order’” or “this newest ‘order.’”

In “Bartleby, the Scrivener,” Melville writes, “It is, of course, an indispensable part of a scrivener’s business to verify the accuracy of his copy, word by word.” Then again, the scrivener is a lost profession.

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