The Supreme Court ordered Trump to “facilitate” Kilmar Abrego Garcia’s release. The administration argues it doesn’t actually need to do that
Days after the Supreme Court ordered Donald Trump to “facilitate” the return of a man his administration illegally shipped to a notorious mega-prison in El Salvador — allegedly the result of an “administrative error” — Trump’s administration is saying it has no responsibility to actually bring him home.
Trump said last week he would follow the high court’s order: “If the Supreme Court said bring somebody back, I would do that. I respect the Supreme Court,” he said.
On Saturday, he appeared to walk back that pledge, claiming on Truth Social that the migrants his administration is paying El Salvador to hold in prison “are now in the sole custody” of the Central American nation, adding that their fate is in the hands of El Salvador President Nayib Bukele — who is visiting the White House on Monday.
Kilmar Abrego Garcia, who fled gang violence in El Salvador to the U.S. in 2011, was previously granted a “protection from removal” order prohibiting the government from deporting him back to that country.
In a district court filing today, the Justice Department claimed that Abrego Garcia’s family has no right to ask the judge to demand the Trump administration secure his release in El Salvador and bring him back to the U.S. The DOJ argued that such a directive would be unconstitutional — and a misunderstanding of the Supreme Court’s order to “facilitate” his return.
“Defendants understand ‘facilitate’ to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States,” lawyers for Trump’s Justice Department wrote in the filing. “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. Indeed, no other reading of ‘facilitate’ is tenable — or constitutional — here.”
The administration further rejected any demands that it share copies or details of its agreements with El Salvador to hold the migrants the U.S. sent there — claiming that this information is either “classified,” subject to attorney-client privilege, or subject to the State Secrets privilege.
The Associated Press reported last month that El Salvador had agreed, in a memo, to house migrants from the U.S. for one year “pending the United States’ decision on their long term disposition.” The memo has not been publicly released.
While the Supreme Court flatly noted that Abrego Garcia’s deportation to El Salvador was “illegal” based on “a withholding order forbidding his removal to El Salvador,” Trump’s Department of Homeland Security argued in a separate filing today that this protective order is null and void because it claims Abrego Garcia is a member of a gang, MS-13, which Trump has designated as a terrorist organization.
A DHS official wrote that “Abrego Garcia is no longer eligible for withholding of removal because of his membership in MS-13 which is now a designated foreign terrorist organization.”
The filings were submitted to District Judge Paula Xinis’ court in Maryland. The Supreme Court sent Abrego Garcia’s case back to her court on Thursday, writing that Xinis’ original order demanding his return “properly requires the government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Xinis has requested daily updates on what the Trump administration is doing to bring him back to the U.S. On Saturday, a State Department official told the court Abrego Garcia is “alive and secure” at the Central American country’s infamous Terrorism Confinement Center, the notorious mega-prison known as CECOT.
As Rolling Stone recently reported, El Salvador’s prison system is effectively “a judicial black hole” rife with “systematic torture.”
The Trump administration has shipped hundreds of Venezuelan migrants to CECOT without due process.
The administration has offered only specious claims that the deported men have ties to gangs — claims that were apparently based on their fully unrelated tattoos and apparel choices. The vast majority of migrants whom Trump sent to El Salvador have no criminal records or previous criminal charges, according to reporting by CBS News’ 60 Minutes.
Today, Secretary of State Marco Rubio announced that the administration just sent 10 more “criminals” to El Salvador.
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