Judge in Abrego Garcia case tells DOJ she has "no tolerance for gamesmanship"
Greenbelt, Maryland
— A federal judge on Tuesday admonished the Department of Justice for not complying 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 have to give process to both sides, but we're going to move… there will be no tolerance for gamesmanship or grandstanding," U.S. District Court Judge Paula Xinis said at the start of a hearing in the case involving Kilmer Abrego Garcia, who was sent to El Salvador last month.
Xinis ordered for the depositions to be completed by April 23. When the Justice Department suggested they might invoke privilege, Xinis told them "cancel vacation, cancel other appointments" and added that she expects "all hands on deck."
Lawyers for Abrego Garcia and the Justice Department faced off in Xinis' courtroom Tuesday, one day after El Salvador's President Nayib Bukele said
he would not be returning 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, and continued to dodge straightforward questions on what the Trump administration is doing, if anything, to return the man.
Joseph Mazzarra, acting general counsel of the Department of Homeland Security, said in a filing shortly before the hearing 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.
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.
Abrego Garcia's wife, Jennifer Vasquez Sura, said before the hearing that she is asking the Trump administration to "stop playing games with the life of Kilmar."
At Tuesday's hearing, Xinis said the Justice Department "has not yet fulfilled the mandate, the order, that I issued," while lawyers for the Justice Department asked for any orders to be stayed after the Supreme Court ruling.
Xinis said 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, including sworn depositions from Trump administration officials with first-hand knowledge of the efforts to return him.
"I've gotten nothing, I've gotten no real response [from the government]," Xinis said, calling the Justice Department's arguments thus far "two misguided ships passing in the night."
Xinis responded to the Justice Department's suggestions that the back and forth is simply a legal dispute, and 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 she rules on holding the government in contempt of her order.
Despite the Justice Department's filings this week citing the exchange between President Trump and Bukele in which Bukele said he would not be returning Abrego Garcia to the United States, Xinis said 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," Xinis said.
Xinis had ordered the Justice Department to provide her with answers to those questions after the Supreme Court last week unanimously
affirmed a portion of an earlier order
that
required the U.S. to "facilitate
" Abrego Garcia's release from Salvadoran custody.
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 John Sauer — have acknowledged that Abrego Garcia's deportation to El Savaldor was an "administrative error" because he was granted withholding of removal.
But Katz, the ICE official, said in his declaration that Abergo 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.
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