Refusal to seek return

Judge launches inquiry into Trump administration’s refusal to seek return of wrongly deported man

“To date, what the record shows is that nothing has been done. Nothing,” U.S. District Judge Paula Xinis said.

By Kyle Cheney and Josh Gerstein

A federal judge ordered an “intense” two-week inquiry into the Trump administration’s refusal to seek the return of a man who was wrongly deported from Maryland to a notorious prison in El Salvador.

“To date, what the record shows is that nothing has been done. Nothing,” U.S. District Judge Paula Xinis said at a court hearing Tuesday.

Xinis’ order sets up a high-stakes sprint that may force senior Trump administration officials to testify under oath about their response to court orders requiring them to facilitate the return of Kilmar Abrego Garcia to the United States. Each day that passes, the judge noted, is another day Abrego Garcia spends improperly detained in a maximum security mega-prison.

“We’re going to move. There will be no tolerance for gamesmanship or grandstanding,” the judge said. “There are no business hours while we do this. … Cancel vacations, cancel other appointments. I’m usually pretty good about things like that in my court, but not this time. So, I expect all hands on deck.”

Xinis’ inquiry is the latest chapter in an escalating clash between the executive and judicial branches over Abrego Garcia’s illegal deportation last month. Xinis previously ordered the administration to “facilitate” his release from the custody of El Salvador, and the Supreme Court upheld that directive last week.

Immigration and homeland security officials have acknowledged that they sent Abrego Garcia to El Salvador erroneously — in violation of a 2019 court order that barred the government from deporting him there because of the risk that he could be targeted by a local gang. But the administration has apparently taken no concrete steps to bring him back. Instead, Trump administration officials have claimed they have no power to do so now that he is under the jurisdiction of El Salvador.

Xinis called that refusal “stunning” even as she agreed there is a legitimate legal debate about her own power to order U.S. officials to make a direct request to their Salvadoran counterparts.

In a written order granting “expedited discovery,” Xinis said four senior officials from the Department of Homeland Security and the Department of State will have to sit for depositions by April 23 — essentially out-of-court interviews in which the officials will have to answer questions under oath from Abrego Garcia’s lawyers. Those officials include Joseph Mazzara, the acting general counsel at Immigration and Customs Enforcement, and Michael Kozak, the senior official in the State Department’s Bureau of Western Hemisphere Affairs.

Xinis’ discovery order also allows Abrego Garcia’s lawyers to pursue additional fact-finding steps, including asking the government for relevant documents about the case.

Justice Department attorney Drew Ensign argued that a joint appearance in the Oval Office Monday by President Donald Trump and President Nayib Bukele of El Slavador demonstrated that the issue had been raised with “the highest authority” in that country and there was no hope of getting Abrego Garcia back.

But Xinis noted that Bukele’s comments came in response to a question from a journalist, not a U.S. official. She also scoffed at Bukele’s dismissive comment that he could not “smuggle” Abrego Garcia back into the U.S. The judge called Bukele’s answer “non-responsive” as a legal matter.

The Trump administration’s decision to lean on that exchange, she said, underscored the need for her to press for sworn testimony and more facts.

The Justice Department appears likely to throw up a series of legal obstacles to the depositions, including claims of confidentiality for executive branch discussions and legal advice. Ensign objected to any fact-finding by the court, and he asked Xinis to give the administration time to appeal her interpretation of the scope of the U.S. government’s obligations.

However, Xinis said the Supreme Court had made “very clear” that the U.S. government was obliged to work to release Abrego Garcia from custody in El Salvador.

“I’m cleaving as closely as one can cleave to the Supreme Court,” the judge told Ensign. “There is, in my view, nothing to appeal. Now, we get to the facts.”

Abrego Garcia, a native of El Salvador, entered the U.S. without authorization around 2011, when he was about 16. He was fleeing gang violence, his lawyers say. Before being deported last month, he was living in Maryland with his wife and children, all U.S. citizens. He has no criminal record and was employed as a sheet metal worker.

The Trump administration has contended that he is a member of the violent Salvadoran gang MS-13, citing an immigration-court proceeding from 2019. Xinis has called the evidence of any gang affiliation extraordinarily flimsy: It amounted to a tip from a confidential informant and the fact that Abrego Garcia wore Chicago Bulls attire.

On Tuesday, the White House escalated its rhetoric about Abrego Garcia. White House press secretary Karoline Leavitt accused Abrego Garcia of being “engaged in human trafficking,” although he hasn’t been charged with a crime and no evidence has been publicly disclosed to support that allegation. Leavitt also mocked press coverage of the case, saying reporters were suggesting he should be nominated for “father of the year.”

Also on Tuesday, the administration revealed a new position about what it would do if Abrego Garcia were released from the El Salvador prison and sent back to the United States. Mazzara, ICE’s acting general counsel, said in a court filing moments before the hearing that the U.S. government would immediately detain Abrego Garcia again. The government would then deport him to another country or seek to “terminate” the 2019 court order that barred his deportation to El Salvador.

A lawyer for Abrego Garcia, Rina Gandhi, told Xinis that the Trump administration is stonewalling in the face of clear court orders to facilitate her client’s return.

“The government has not even unambiguously requested his return,” Gandhi said, adding that the U.S. frequently makes such entreaties in immigration cases. “The government routinely seeks return by taking low-level actions outside the United States that do not implicate foreign policy.”