Washington — Lawyers for the Justice Department and a Maryland man who was mistakenly deported to El Salvador will meet again Tuesday in federal court as the Trump administration faces scrutiny following a Supreme Court ruling that said it must facilitate the release of the man, Kilmar Abrego Garcia, from a Salvadoran prison.
The two sides will appear before U.S. District Judge Paula Xinis in a courtroom in Greenbelt, Maryland, for a follow-up hearing after she ordered the administration on Friday to provide her with updates on Abrego Garcia’s whereabouts, what steps it had taken to facilitate his return to the U.S. and what further steps it will take regarding his release.
Xinis had ordered the Justice Department to provide her with answers to those questions after the Supreme Court last week upheld a portion of an earlier order that required the U.S. to “facilitate” Abrego Garcia’s release from Salvadoran custody.
Shortly before the start of the proceeding, Joseph Mazzarra, acting general counsel of the Department of Homeland Security, said in a declaration that the department would facilitate Abrego Garcia’s presence in the U.S. in accordance with established procedures “if he presents at a port of entry.”
Mazzarra said that if Abrego Garcia does show up at a port of entry, he would be detained by the Department of Homeland Security and either removed to a third country or be stripped of a legal protection that he was granted in 2019, which forbid immigration authorities from removing him to his home country of El Salvador.
In order to revoke that legal status, known as withholding of removal, the Department of Homeland would have to re-open his immigration case and ask an immigration judge to terminate it.
Lawyers for Abrego Garcia argued in a filing that the Trump administration defied the district court and Supreme Court orders by refusing to provide “even basic information” about their client’s location and what it is doing to follow the directive to return him to the U.S. They asked Xinis to provide three types of relief, including ordering the government to explain why it shouldn’t be held in contempt for failure to comply with her prior rulings.
During a hearing Friday, after the high court released its decision, Drew Ensign, a Justice Department lawyer, repeatedly said he could not provide information about Abrego Garcia’s whereabouts. Xinis said in a written order after the proceedings that the Trump administration “failed to comply” with her directive and “made no meaningful effort to” obey it. She ordered the government to provide daily updates to the court about Abrego Garcia’s location and custodial status, as well as the efforts taken by the administration to bring him back to the U.S.
In a declaration submitted to the court Saturday, Michael Kozak, a senior State Department official, said Abrego Garcia is currently being held in the Terrorism Confinement Center, known as CECOT, in El Salvador.
“He is alive and secure in that facility,” Kozak wrote. “He is detained pursuant to the sovereign, domestic authority of El Salvador.”
In another declaration filed Sunday, Evan Katz, assistant director for the Removal Division at ICE, said the administration had no updates for the court beyond what had already been shared. The latest filing, submitted Monday from Mazzara, said the agency “does not have the authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.”
Trump administration officials have been defiant in their response to Xinis’ order that they take steps to bring Abrego Garcia back to the U.S. and have argued that their obligations are limited only to removing “any domestic obstacles” that would impede his ability to return to the U.S., where he has lived since arriving unlawfully in 2011.
Federal courts, they said in a filing Sunday, are powerless “to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner.”
Abrego Garcia was arrested by immigration authorities in March and flown to El Salvador with more than 200 other migrants who are now confined at CECOT. His lawyers have argued that his removal to El Salvador was unlawful, as an immigration judge in 2019 granted him a withholding of removal, a legal status that forbids the Department of Homeland Security from returning him to his home country of El Salvador because he is likely to face persecution from local gangs.
Numerous Trump administration officials at the Departments of Justice and Homeland Security — including Solicitor General D. John Sauer — have acknowledged that Abrego Garcia’s deportation to El Salvador was an “administrative error” because he was granted withholding of removal.
But Katz, the ICE official, said in his declaration that Abrego Garcia is no longer eligible for that relief because of his alleged membership in the gang MS-13, which President Trump designated as a foreign terrorist organization.
While the Department of Homeland Security has claimed that Abrego Garcia has ties to MS-13, citing allegations from a confidential informant, his lawyers argue that he is not a member of MS-13 or any other gang. They have also said he has never been charged or convicted of any crimes in the U.S., El Salvador or any other country.
Abrego Garcia’s case landed before the Supreme Court last week after Xinis issued an order on April 4 that directed the Trump administration to “facilitate and effectuate” Abrego Garcia’s return by 11:59 p.m. on April 7.
The Justice Department appealed, and Chief Justice John Roberts issued a temporary order pausing that deadline to allow the Supreme Court more time to consider whether to grant the Trump administration’s request to block Xinis’ order.
The high court on Thursday upheld part of the decision that required the government to “facilitate” Abrego Garcia’s release from Salvadoran custody, but said the district court should clarify its directive that the Trump administration “effectuate” his return.
Xinis moved swiftly in responding, and issued a new order requiring the Trump administration to take all available steps to facilitate Abrego Garcia’s return to the U.S. “as soon as possible.”
Trump administration officials have claimed that it is up to the Salvadoran government to decide if they want to return Abrego Garcia to the U.S. But during a meeting with President Trump on Monday, Salvadoran President Nayib Bukele said he does not “have the power” to do so.
“How can I return him to the United States?”he said in response to questions from reporters. “I smuggle him into the United States or what do I do? Of course I’m not going to do it. The question is preposterous.”
The U.S. is paying the Salvadoran government $6 million to house migrants at CECOT.
