April 13, 2025 (Sunday) Heather Cox Richardson

This evening, lawyers for the Department of Justice told a federal court that the administration does not believe it has a legal obligation to return Kilmar Armando Abrego Garcia to the United States, despite a court order to do so.

The 29-year-old Abrego Garcia came to the U.S. about 2011 when he was 16 to escape threats from a gang that was terrorizing his family. He settled in Maryland with his older brother, a U.S. citizen, and lived there until in 2019 he was picked up by police as he waited at a Home Depot to be picked up for work as a day laborer. Police transferred him to Immigrations and Customs Enforcement (ICE). After a hearing, an immigration judge rejected his claim for asylum but said he could not be sent back to El Salvador, finding it credible that the Barrio 18 gang had been “targeting him and threatening him with death because of his family’s pupusa business.”

Ever since, Abrego Garcia has checked in annually with ICE as directed. He lives with his wife and their three children, and has never been charged with any crime. The Department of Homeland Security issued him a work permit, and he joined a union, working full time as a sheet metal apprentice.

On March 12, ICE agents pulled his car over, told his wife to come pick up their disabled son, and incarcerated Abrego Garcia, pressing him to say he was a member of MS-13. On March 15 the government rendered Abrego Garcia to the infamous CECOT prison for terrorists in El Salvador, alleged to be the site of human rights abuses, torture, extrajudicial killings. The U.S. government is paying El Salvador $6 million a year to incarcerate the individuals it sends there.

On March 24, Abrego Garcia’s family sued the administration over his removal.

On March 31 the government admitted that its arrest and rendition of Abrego Garcia happened because of “administrative error” but said he couldn’t be brought back because, in El Salvador, he is outside the jurisdiction of the United States. It also accused him of being a member of the MS-13 gang and said that bringing him back to the U.S. would threaten the public.

On April 4, U.S. District Court Judge Paula Xinis ordered the government to return Abrego Garcia to the U.S. no later than 11:59 pm on April 7.

In her opinion, filed April 6, Judge Xinis wrote that “[a]lthough the legal basis for the mass removal of hundreds of individuals to El Salvador remains disturbingly unclear, Abrego Garcia’s case is categorically different—there were no legal grounds whatsoever for his arrest, detention, or removal.…. [H]is detention appears wholly lawless.” It is “a clear constitutional violation.” And yet administration officials “cling to the stunning proposition that they can forcibly remove any person—migrant and U.S. citizen alike—to prisons outside the United States, and then baldly assert they have no way to effectuate return because they are no longer the 'custodian,' and the Court thus lacks jurisdiction.”

The administration had already appealed her April 4 order to the Supreme Court, which handed down a 9–0 decision on Thursday, April 10, requiring the Trump administration “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador,” but asking the district court to clarify what it meant by “effectuate,” that release, noting that it must give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

The Supreme Court also ordered that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” Judge Xinis ordered the government to file an update by 9:30 a.m. on April 11 explaining where Abrego Garcia is, what the government is doing to get him back, and what more it will do. She planned an in-person hearing at 1:00 p.m.

But the administration evidently does not intend to comply. On April 11, the lawyer representing the government, Drew Ensign, said he did not have information about where Abrego Garcia is and ignored her order to provide information about what the government was doing to bring him back. Saturday, it said Abrego Garcia is “alive and secure” in CECOT. Today, it said it had no new information about him, but said that Abrego Garcia is no longer eligible for the immigration judge’s order not to send him to El Salvador “because of his membership in MS-13 which is now a designated foreign terrorist organization.”

There is still no evidence that Abrego Garcia is a member of MS-13.

Today, administration lawyers used the Supreme Court’s warning that the court must give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs” to lay out a chilling argument. They ignored the Supreme Court’s agreement that the government must get Abrego Garcia out of El Salvador, as well as the court’s requirement that the administration explain what it’s doing to make that happen.

Instead, the lawyers argued that because Abrego Garcia is now outside the country, any attempt to get him back would intrude on the president’s power to conduct foreign affairs. Similarly, they argue that the president cannot be ordered to do anything but remove domestic obstacles from Abrego Garcia’s return. Because Nayib Bukele, the president of El Salvador, is currently in the U.S. for a visit with Trump, they suggest they will not share any more updates about Abrego Garcia and the court should not ask for them because it would intrude on “sensitive” foreign policy issues.

Let’s be very clear about exactly what’s happening here: President Donald J. Trump is claiming the power to ignore the due process of the law guaranteed by the U.S. Constitution, declare someone is a criminal, kidnap them, send them to prison in a third country, and then claim that there is no way to get that person back.

All people in the United States are entitled to due process, but Trump and his officers have tried to convince Americans that noncitizens are not. They have also pushed the idea that those they are offshoring are criminals, but a Bloomberg investigation showed that of the 238 men sent to CECOT in the first group, only five of them had been charged with or convicted of felony assault or gun violations. Three had been charged with misdemeanors like petty theft. Two were charged with human smuggling. In any case, in the U.S., criminals are entitled to due process.

Make no mistake: as Supreme Court Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson recently warned, if the administration can take noncitizens off the streets, render them to prison in another country, and then claim it is helpless to correct the error either because the person is out of reach of U.S. jurisdiction, it could do the same thing to citizens.

Trump has said he would “love” to do exactly that, and would even be “honored” to, and Bukele has been offering to hold U.S. citizens. Dasha Burns and Myah Ward of Politico reported Friday that former Blackwater CEO Erik Prince is pitching a plan to expand renditions to El Salvador to at least 100,000 criminal offenders from U.S. prisons and to avoid legal challenges by making part of CECOT American territory, then leasing it back to El Salvador to run.

When White House press secretary Karoline Leavitt says, “The president's idea for American citizens to potentially be deported, these would be heinous violent criminals who have broken our nation's laws repeatedly," remember that just days ago, Trump suggested that a former government employee was guilty of treason for writing a book about his time in the first Trump administration that Trump claimed was “designed to sow chaos and distrust” in the government.

Here’s the thing: Once you give up the idea that we are all equal before the law and have the right to due process, you have given up the whole game. You have admitted the principle that some people have more rights than others. Once you have replaced the principle of equality before the law with the idea that some people have no rights, you have granted your approval to the idea of an authoritarian government. At that point, all you can do is to hope that the dictator and his henchmen overlook you.

At least some people understand this. The president of North America’s Building Trades Unions, Sean McGarvey, received a standing ovation when he said to a room full of his fellow union workers: “We need to make our voices heard. We’re not red, we’re not blue. We’re the building trades, the backbone of America. You want to build a $5 billion data center? Want more six-figure careers with health care, retirement, and no college debt? You don’t call Elon Musk, you call us!... And yeah, that means all of us. All of us. Including our brother [International Association of Sheet Metal, Air, Rail and Transportation Workers] apprentice Kilmar Abrego Garcia, who we demand to be returned to us and his family now! Bring him home!”