The Trump administration insisted Sunday that it is not required to work with officials in El Salvador to secure the return of a man mistakenly deported to the country, days after the Supreme Court endorsed a federal judge’s directive that US officials must “facilitate” bringing him back stateside.
The argument has the potential of setting up another high-profile showdown between the administration and the federal judiciary over how much power courts have in resolving disputes concerning immigration, particularly ones involving foreign governments.
The assertion, made in court papers by Justice Department lawyers, comes after US District Judge Paula Xinis on Friday ordered the administration to “take all available steps to facilitate” the return of Kilmar Armando Abrego Garcia, who was mistakenly deported to El Salvador’s notorious mega-prison last month.
“The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner,” the DOJ attorneys wrote in the seven-page filing, arguing officials have a duty only to “remove any domestic obstacles” that may stand in the way of Abrego Garcia returning to the US.
An earlier — yet similar — order from Xinis was appealed by the government up to the Supreme Court, which ultimately backed the judge’s order Thursday. The high court, however, did not give the administration a deadline for when Abrego Garcia should be returned, saying instead that the district judge’s directive was unclear and needed clarification.
The Supreme Court noted the clarification needed to be made with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
The administration, the Justice Department lawyers wrote in the Sunday filing, understands “‘facilitate’ to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States.”
“Taking ‘all available steps to facilitate’ the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here,” they continued. “Indeed, no other reading of ‘facilitate’ is tenable — or constitutional — here.”
In a separate court filing Sunday, a senior Immigration and Customs Enforcement official said in a sworn statement that Abrego Garcia “is no longer eligible for withholding of removal” because of the administration’s claim that he’s a member of the MS-13 gang, which the Trump administration has designated as a foreign terrorist organization.
Abrego Garcia was granted protected status by an immigration judge in 2019 that prohibited the federal government from sending him to El Salvador. His attorneys say he fled gang violence in El Salvador more than a decade ago. Under the 2019 order, he was still considered removable; it just couldn’t be to El Salvador.
But the assertion by Evan Katz, an official with ICE’s Enforcement and Removal Operations, means that if Abrego Garcia were brought back to the US, the government would work quickly to deport him.
Katz’s statement was filed as part of the Justice Department’s daily update on what the administration is doing to facilitate Abrego Garcia’s return. Xinis ordered the updates last week after a DOJ attorney could not provide details on his exact location.
The Trump administration said in its Saturday filing that Abrego Garcia is “alive and secure” in El Salvador’s mega-prison, CECOT.
“It is my understanding based on official reporting from our Embassy in San Salvador that Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador,” a senior State Department official wrote in the filing. “He is alive and secure in that facility.”
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