Deadline looms in case of Maryland man’s wrongful deportation to El Salvador

The U.S. Department of Justice has asked the Supreme Court to block a court order requiring the return of Kilmar Abrego Garcia, the Maryland man who was mistakenly deported to El Salvador last month.

U.S. District Judge Paula Xinis gave the Trump administration a deadline of 12:00 a.m. Tuesday to bring Abrego Garcia back from El Salvador. The Justice Department appealed that order, arguing that the court no longer has jurisdiction, in part because Abrego Garcia is now in El Salvador.

On Monday, a U.S. Court of Appeals for the 4th Circuit panel l voted unanimously to deny the Justice Department’s request for an emergency stay.

“The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” wrote Judge Stephanie Thacker. “The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”

The Trump administration then quickly asked the Supreme Court to block the lower court’s order, writing that it is “absurd” and “interferes with sensitive international negotiations.”

“A grievous error”

Abrego Garcia had been living in Maryland for over a decade, with a form of legal protection known as ‘withholding of removal.’ In spite of that, Immigration and Customs Enforcement (ICE) officers arrested Abrego Garcia last month, and deported him to El Salvador, alongside hundreds of other men accused of being gang members.

The White House argues that Abrego Garcia is a member of the Salvadoran gang known as MS-13.

“He should be behind bars, whether it be in El Salvador or in a U.S. detention facility. He should not be on the streets of America,” said Tricia McLaughlin, the Assistant Secretary for Public Affairs at the Department of Homeland Security, in an interview with NPR’s All Things Considered.

“An immigration judge reviewed evidence and determined he actually is a verified member of MS-13,” McLaughlin told NPR on Sunday. “There’s also intelligence reports that he’s involved in human trafficking.”

But Abrego Garcia’s lawyers vigorously dispute those allegations. And his lawyers note that he has no criminal record in the U.S., El Salvador, or any other country.

An immigration judge did order Abregio Garcia held without bond after reviewing the gang allegations against him in 2019. But after a full evidentiary hearing, Abrego Garcia was granted “withholding of removal” – a form of legal protection that should have prevented his deportation to El Salvador.

Abrego Garcia’s lawyers say the MS-13 allegations are based largely on an accusation from a confidential informant who accused him of being a member of the gang in New York, a state where Abrego Garcia has never lived.

Judge Xinis described the accusations as “vague” and “uncorroborated,” and noted that the Trump administration has introduced no evidence of a criminal indictment or complaint into the record.

Likewise, the Trump administration has not made public intelligence reports or other evidence to support the allegation that Abrego Garcia was involved in human trafficking.

The Trump administration admitted in court filings that Abrego Garcia was mistakenly deported due to what it calls an “administrative error.” He is now being held at CECOT, a notorious Salvadoran detention center.

“They had no legal authority to arrest him,” Judge Xinis wrote, “no justification to detain him, and no grounds to send him to El Salvador — let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.” She described the erroneous deportation as “a grievous error.”

The White House doubled down — and put its attorney on administrative leave.

At a hearing last Friday, Judge Xinis asked Justice Department lawyer Erez Reuveni why Abrego Garcia was not returned as soon as it became clear he’d been sent by mistake, he responded that he’d asked his client, but “I have not received, to date, an answer that is satisfactory.”

Reuveni was placed on administrative leave the next day.

The Justice Department continues to argue that Abrego Garcia is out of its hands, and that the district court judge overstepped her authority.

“The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge’s bidding,” the Justice Department argued in its brief before the Supreme Court.

Judge Xinis rejected that argument, and pointed out that the Trump administration is paying El Salvador to hold these prisoners. The Fourth Circuit appeals court panel agreed with that reasoning.

“The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders,” wrote Judge J. Harvie Wilkinson III, and then contend “that it is no longer their custodian, and there is nothing that can be done.”

“It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone,” wrote Wilkinson, who was appointed to the bench by former President Ronald Reagan.