Trump administration says US can't force return of man mistakenly deported to El Salvador

WASHINGTON - A federal judge didn’t have the authority to order the Trump administration to broker the return of a Maryland man who was mistakenly deported from the U.S. to a notorious El Salvador prison, government attorneys argued Saturday as they urged an appeals court to suspend the ruling.

What we know:

U.S. District Judge Paula Xinis on Friday ordered the administration to "facilitate and effectuate" Kilmar Abrego Garcia’s return to the U.S. by Monday at midnight. 

Justice Department lawyers asked the 4th U.S. Circuit Court of Appeals at 2 a.m. Saturday morning to immediately pause the judge’s order.

"A judicial order that forces the Executive to engage with a foreign power in a certain way, let alone compel a certain action by a foreign sovereign, is constitutionally intolerable," they wrote.

The appeals court asked Abrego Garcia’s lawyers to respond to the government’s filing by Sunday afternoon.

See the full court documents below. 

The backstory:

Abrego Garcia, a 29-year-old Salvadoran national, was arrested in Maryland and deported last month despite an immigration judge’s 2019 ruling that shielded him from deportation to El Salvador, where he faced likely persecution by local gangs.

His mistaken deportation, described by the White House as an "administrative error," has outraged many and raised concerns about expelling noncitizens who were granted permission to be in the U.S.

Dozens of supporters gathered at the Greenbelt, Maryland, federal courthouse for Friday’s hearing. A cheer erupted in the courtroom when Xinis ruled in favor of Abrego Garcia, whose wife, a U.S. citizen, was in attendance.

Xinis, who was nominated by President Barack Obama, said there was no legal basis for Abrego Garcia’s detention and no legal justification for his removal to El Salvador, where he has been held in a prison that observers say is rife with human rights abuses.

Abrego Garcia’s attorney, Simon Sandoval-Moshenberg, said the government has done nothing to get his client back, even after admitting its errors.

What they're saying:

"Plenty of tweets. Plenty of White House press conferences. But no actual steps taken with the government of El Salvador to make it right," he told the judge on Friday.

Abrego Garcia’s wife joined dozens of supporters at a rally last week to urge her husband’s immediate return.

Jennifer Vasquez Sura, a U.S. citizen, hasn’t spoken to Abrego Garcia since he was flown to his native El Salvador last month and imprisoned. She urged her supporters to keep fighting for her husband "and all the Kilmars out there whose stories are still waiting to be heard."

"To all the wives, mothers, children who also face this cruel separation, I stand with you in this bond of pain," she said during the rally at a community center in Hyattsville, Maryland. "It’s a journey that no one ever should ever have to suffer, a nightmare that feels endless."

The other side:

The White House has cast Abrego Garcia as an MS-13 gang member and doubled down on that claim after Friday’s hearing. Abrego Garcia’s attorneys have countered that there is no evidence he was in MS-13.

Abrego Garcia had a permit from DHS to legally work in the U.S., his attorney said. He served as a sheet metal apprentice and was pursuing his journeyman license.

Abreho Garcia fled El Salvador around 2011 because he and his family were facing threats by local gangs. In 2019, a U.S. immigration judge granted him protection from deportation to El Salvador.

Government lawyers say they have no control over Abrego Garcia and no authority to arrange for his return — "any more than they would have the power to follow a court order commanding them to ‘effectuate’ the end of the war in Ukraine, or a return of the hostages from Gaza."

"It is an injunction to force a foreign sovereign to send back a foreign terrorist within three days’ time. That is no way to run a government. And it has no basis in American law," they wrote.