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President Donald Trump departs after speaking at Mar-a-Lago in Palm Beach, Fla., Tuesday, Feb. 18, 2025 (Pool via AP).
One day after the U.S. Supreme Court paused a deadline for the Justice Department to return a protected resident to the U.S. who was mistakenly sent to El Salvador as part of the Trump administration’s fast-tracked deportations under an 18th-century wartime authority, the administration is now seeking to have the lower court’s order vacated entirely. Should the request be granted, it could leave Kilmar Abrego Garcia stranded indefinitely at one of the most notorious work prisons in the world.
“[V]acatur of the order is warranted to prevent the district court from again ordering diplomacy on an impossible deadline, commandeering core Article II foreign relations functions, and independently transgressing the Immigration and Nationality Act’s jurisdictional bar on collaterally challenging grounds for removal,” a DOJ attorney wrote in a 12-page filing supporting its application to have the injunction vacated. “[T]his Court should vacate the district court’s injunction at least insofar as it orders the government to return Abrego Garcia to the United States, because he has no entitlement to be here.”
Chief Justice John Roberts on Monday afternoon temporarily halted a preliminary injunction issued by U.S. District Judge Paula Xinis, which gave the DOJ just over three days to facilitate bringing Garcia back to the country, referring to his deportation as “an illegal act” in her order. The 29-year-old was sent to El Salvador on March 15, in error as part of Trump’s proclamation invoking the Alien Enemies Act of 1798 to rush through mass deportations, which have since been blocked by a federal judge, without providing due process to those being flown out of the country.
Garcia, a native of El Salvador, was in the U.S. with protected legal status at the time of his deportation. His wife and 5-year-old child are U.S. citizens.
Asserting that the administration is likely to win on the merits of the case, the Justice Department argues that the district court’s order demanding the return of Garcia “from a foreign sovereign” violates Article II of the U.S. Constitution.
“The court’s order expressly ‘DIRECTS Defendants to return Abrego Garcia to the United States,’ and ‘order[s] that Defendants return Abrego Garcia to the United States’ by 11:59 PM last night,” the DOJ wrote. “That order thus requires the United States to successfully persuade or compel the Government of El Salvador to release a member of a designated foreign terrorist organization who is on foreign soil under foreign control — and to do so by the district court’s impossible deadline.”
Notably, the government has proffered little, if any, evidence that Garcia was a gang member. He has no criminal record in the U.S. or El Salvador and has submitted sworn statements that he was fleeing El Salvador due to gang violence.
A Justice Department attorney last week even conceded to a federal judge that Garcia’s deportation was due to an “administrative error” and said the government “made a choice here to produce no evidence,” which “speaks for itself.” However, that attorney has since been suspended from working at the Justice Department.
“Those inappropriate statements did not and do not reflect the position of the United States,” the filing states. “Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.”
According to the DOJ, another obstacle in returning Garcia to the U.S. is a “diplomatic arrangement with El Salvador.
“[T]his Office has been informed that El Salvador has its own legal rationales for detaining members of criminal associations and foreign terrorist groups like MS-13,” the filing states. “Even what respondents seem to contemplate — requesting release by El Salvador — still requires negotiations with the foreign sovereign that is currently holding Abrego Garcia.”
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