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.”
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“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.
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“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.”
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“[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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