US disputes basis for returning man wrongly sent to El Salvador

David Voreacos and Carmeli Argana, Bloomberg News on Apr 13, 2025

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The Trump administration challenged the basis for returning a wrongly deported Maryland man from a notorious El Salvador prison, telling a federal judge that he’s a member of the MS-13 gang and so not eligible to come back to the U.S.

The Justice Department suggested in a Sunday court filing that it may resist an April 10 ruling by the U.S. Supreme Court that the government must “facilitate” the return of Kilmar Abrego Garcia, a Salvadoran migrant who was lawfully living in Maryland until his deportation last month.

Federal officials had earlier conceded he was deported through an “administrative error” because an immigration judge ruled in 2019 that he couldn’t be deported to his native El Salvador. The judge granted that so-called “withholding of removal” after finding Abrego Garcia faced gang-based extortion and persecution that risked his life or freedom.

A district judge, a panel of appellate judges and the Supreme Court all relied on that 2019 withholding of removal to conclude Abrego Garcia was wrongly deported and should be returned. The order by the high court established a limit on President Donald Trump’s deportation power as he pushes for sweeping authority with minimal judicial review.

But in a declaration in the Sunday filing, a Department of Homeland Security official said Abrego Garcia is a member of MS-13, which the Trump administration has declared a foreign terrorist organization.

“I understand that he should not have been removed to El Salvador because the immigration judge had also granted Abrego Garcia withholding of removal to El Salvador,” wrote Evan Katz, an assistant director of the DHS removal division. “However, I also understand 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.”

Abrego Garcia’s lawyers and U.S. District Judge Paula Xinis both said earlier he is not a member of MS-13. At a contentious hearing on April 11, Xinis ordered the Justice Department to give her daily updates on their progress in facilitating Abrego Garcia’s return. Another hearing is set for April 15.

In a court declaration on Saturday, U.S. State Department official Michael Kozak said Abrego Garcia was “alive and secure” in El Salvador’s Terrorism Confinement Center. But the filing was silent on the judge’s question of what steps the U.S. is taking to “facilitate his immediate return to the United States.”

Similarly, the Sunday declaration said nothing about what the U.S. is doing to bring back Abrego Garcia, 29, whose wife and three children are U.S. citizens.

The weekend filings deepen the Trump administration’s conflict with Xinis, who sharply criticized the Justice Department’s failure on Friday to answer basic questions about Abrego Garcia.

In the Saturday filing, Kozak said he learned from the U.S. embassy in San Salvador that Abrego Garcia is being detained at the Terrorism Confinement Center “pursuant to the sovereign, domestic authority of El Salvador.” Kozak is a senior official in the State Department’s Bureau of Western Hemisphere Affairs.

Immigration officials arrested Abrego Garcia on March 12 and accused him of playing a “prominent role” in MS-13, though he hasn’t been convicted of a crime or charged with one. He was flown to El Salvador on March 15 along with about 250 other alleged gang members.

While Trump has defended the deportations to the Salvadoran prison, he said after the Supreme Court ruled, “If the Supreme Court said ‘Bring somebody back,’ I would do that.” He added: “I respect the Supreme Court.”

But in a Truth Social post on Saturday night, Trump suggested the fate of detainees is up to El Salvador President Nayib Bukele, who is visiting him Monday. The two countries are “working closely together to eradicate terrorist organizations,” Trump wrote.

Trump said Bukele “has graciously accepted into his Nation’s custody some of the most violent alien enemies of the World and, in particular, the United States. These barbarians are now in the sole custody of El Salvador, a proud and sovereign Nation, and their future is up to President B and his Government.”

In their own court filing on Saturday, Abrego Garcia’s lawyers urged Xinis to issue an order saying the government must explain by Monday why it shouldn’t be held in contempt of court for failing to comply with her orders.

They also said the judge should order the government to produce witnesses from the Justice, State and Homeland Security departments at the April 15 hearing to describe how they’re facilitating Abrego Garcia’s return.

The Justice Department said in a filing Sunday that the judge should deny the motion by Abrego Garcia’s lawyers. The government said that the judge’s authority in the case is limited to US matters and not foreign relations.

“The federal courts have no authority to direct the executive branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner,” according to the filing. “A federal court cannot compel the executive branch to engage in any mandated act of diplomacy or incursion upon the sovereignty of another nation.”