Greenbelt, MD— A federal judge chastised the Department of Justice on Tuesday for failing to comply with her order to facilitate the release of a Maryland man who the Trump administration admitted had been mistakenly deported to a prison in El Salvador, and ordered expedited discovery in the case.
“We need to give process to both sides, but we will move forward…” “There will be no tolerance for gamesmanship or grandstanding,” U.S. District Court Judge Paula Xinis stated at the start of a hearing in the case of Kilmer Abrego Garcia, who was deported to El Salvador last month.
Xinis ordered that the depositions be completed by April 23. When the Justice Department suggested invoking privilege, Xinis advised them to “cancel vacation, cancel other appointments” and to expect “all hands on deck.”
Lawyers for Abrego Garcia and the Justice Department clashed in Xinis’ courtroom on Tuesday, one day after El Salvador’s President Nayib Bukele announced his decision not to return Abrego Garcia.
Drew Ensign, a Justice Department attorney, said Tuesday that the Trump administration would facilitate Abrego Garcia’s return if he arrived at a port of entry, but he avoided direct questions about what the Trump administration is doing, if anything, to return the man.
In a filing shortly before the hearing, Joseph Mazzarra, acting general counsel for the Department of Homeland Security, stated that if Abrego Garcia appears at a port of entry, he will be detained by the Department of Homeland Security and either removed to a third country or stripped of legal protection granted to him in 2019, which prohibits immigration authorities from removing him to his home country of El Salvador.
To revoke that legal status, known as withholding of removal, the Department of Homeland Security would have to reopen his immigration case and petition an immigration judge to dismiss it.
Jennifer Vasquez Sura, Abrego Garcia’s wife, stated prior to the hearing that the Trump administration should “stop playing games with Kilmar’s life.”
At Tuesday’s hearing, Xinis stated that the Justice Department “has not yet fulfilled the mandate, the order, that I issued,” while Justice Department lawyers requested that any orders be stayed following the Supreme Court ruling.
Xinis stated on Tuesday that “every day Mr. Abrego Garcia is detained in CECOT is another date of irreparable harm,” and gave both sides two weeks to complete expedited discovery, or fact-finding in the case, which includes sworn depositions from Trump administration officials with firsthand knowledge of the efforts to return him.
“I’ve gotten nothing, I’ve gotten no real response [from the government],” Xinis said, describing the Justice Department’s arguments so far as “two misguided ships passing in the night.”
Xinis responded to the Justice Department’s suggestion that the back and forth is simply a legal dispute, stating that there is “so much daylight between what you keep saying and what the posture of the case is.”
“I will have the record before me to call it like I see it,” Xinis said, before deciding whether to hold the government in contempt of her order.
Despite the Justice Department’s filings this week citing an exchange between President Trump and Bukele in which Bukele stated that he would not return Abrego Garcia to the United States, Xinis stated that “if that were in a court of law — it would have real infirmities in a trial, in a court of law.”
“No press release is going to move the court the same way that sworn, under oath testimony from persons with knowledge,” indicated Xinis.
Xinis had directed the Justice Department to provide her with answers to those questions after the Supreme Court unanimously upheld a portion of an earlier order requiring the United States to “facilitate” Abrego Garcia’s release from Salvadoran custody.
Lawyers for Abrego Garcia argued in a filing that the Trump administration violated district court and Supreme Court orders by refusing to provide “even basic information” about their client’s location and what it is doing to comply with the directive to return him to the United States.
They asked Xinis to grant three types of relief, including ordering the government to explain why it should not be held in contempt for failing to comply with her previous rulings.
Drew Ensign, a Justice Department lawyer, repeatedly stated during a hearing Friday that he could not provide information about Abrego Garcia’s whereabouts after the Supreme Court’s decision.
Xinis stated in a written order issued following 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 on Abrego Garcia’s location and custody status, as well as the administration’s efforts to bring him back to the United States.
In a declaration filed with the court on Saturday, Michael Kozak, a senior State Department official, stated that Abrego Garcia is currently being held in El Salvador’s Terrorism Confinement Center, or CECOT.
“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 on Sunday, Evan Katz, assistant director for the Removal Division at ICE, stated that the administration had no additional updates for the court beyond what had already been shared.
Mazzara’s most recent filing, submitted on Monday, stated that 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 defied Xinis’ order to take steps to bring Abrego Garcia back to the United States, claiming that their obligations are limited to removing “any domestic obstacles” that would impede his ability to return to the United States, where he has lived since arriving illegally in 2011.
According to a filing made on Sunday, federal courts lack the authority “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 apprehended by immigration officials in March and flown to El Salvador with over 200 other migrants who are now detained at CECOT.
His lawyers have argued that his removal to El Salvador was unlawful, as an immigration judge granted him a withholding of removal in 2019, a legal status that prevents the Department of Homeland Security from returning him to El Salvador because he is likely to face persecution from local gangs.
Several Trump administration officials from the Departments of Justice and Homeland Security, including Solicitor General John Sauer, have admitted that Abrego Garcia’s deportation to El Savaldor was a “administrative error” because he was granted withholding of removal.
However, Katz, an ICE official, stated in his declaration that Abergo Garcia is no longer eligible for that relief due to his alleged membership in the gang MS-13, which President Trump has designated as a foreign terrorist organization.
While the Department of Homeland Security claims that Abrego Garcia is affiliated with 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 stated that he has never been charged or convicted of a crime in the United States, El Salvador, or any other country.
Abrego Garcia’s case came before the Supreme Court last week after Xinis issued an order on April 4 directing the Trump administration to “facilitate and effectuate” his return by 11:59 p.m. on April 7.
The Justice Department appealed, and Chief Justice John Roberts issued a temporary order postponing the deadline to give the Supreme Court more time to decide whether to grant the Trump administration’s request to overturn Xinis’ order.
The Supreme Court upheld part of the decision on Thursday, requiring 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 responded quickly, issuing a new order directing the Trump administration to take all necessary steps to facilitate Abrego Garcia’s return to the United States “as soon as possible.”
Officials from the Trump administration have claimed that it is up to the Salvadoran government to decide whether to return Abrego Garcia to the United States. However, during a meeting with President Trump on Monday, Salvadoran President Nayib Bukele stated that he does not “have the power” to do so.
“How can I return him to the United States?” he replied to reporters’ questions. “Do I smuggle him into the United States, or what should I do? Of course, I won’t do it. “The question is ridiculous.”
The United States will pay the Salvadoran government $6 million to house migrants at CECOT.