A federal judge sharply rebuked the Trump administration and scolded officials on Tuesday for taking no steps to secure the return of a man wrongly deported to a notorious prison in El Salvador, as the US supreme court had ordered in a contentious ruling last week.
The US district judge Paula Xinis said that Donald Trump’s news conference with El Salvador’s president, Nayib Bukele, where the leaders joked that Kilmar Ábrego García would not be released, did not count as compliance.
“To date nothing has been done,” Xinis said, a day after senior Trump officials also mounted an effort to sidestep the supreme court decision by offering increasingly strained readings of the order to claim they were powerless to bring back Ábrego García.
The judge ultimately said she would require the administration to produce details under oath about its attempts to return Ábrego García to US soil in two weeks, an unusually expeditious timeline for discovery that indicated how she intends to move with the case.
At issue at the hearing in federal district court in Maryland was the administration’s narrow reading of the supreme court order that compelled it to “facilitate” the return of Ábrego García, who was supposed to have been shielded from being sent to El Salvador.
The administration had earlier conceded Ábrego García’s deportation was an administrative error. But it has since taken the position that it is powerless to bring him back beyond removing domestic obstacles, and that courts lack the constitutional power to dictate the president to do more.
The lead lawyer for the administration, Drew Ensign, also said in legal filings before the hearing that even if Ábrego García were returned to the US, the justice department would deport him to a different country or move to terminate the order blocking his removal to El Salvador.
But the judge rejected the administration’s narrow reading of “facilitate”, noting the plain meaning of the word meant officials needed to secure Ábrego García’s release – and that US immigration and customs enforcement had previously taken a number of positions on its meaning.
“Your characterization is not bound in fact,” Xinis said. “I need facts.”
The administration argued it had sought to comply with the supreme court’s order when Trump addressed the case and Bukele questioned whether he was supposed to smuggle Ábrego García across the border – which Ensign argued showed the matter had been raised at the “highest levels”.
The judge appeared unimpressed by the argument. “It’s not a direct response,” Xinis said. “Nor is the quip about smuggling someone into the US. If you were removing domestic barriers, there would be no smuggling, right? Two misguided ships passing in the night.”
The judge told Ábrego García’s lawyers to prepare by Wednesday their questions for the administration about what steps it had taken. She said they could depose up to six officials, including Robert Cerna, a top official at Ice, and Joseph Mazarra, the acting general counsel of the Department of Homeland Security.
“Cancel vacation,” Xinis told Ensign. “Cancel appointments. I’m usually pretty good about this in my courtroom, but not this time.”
After the hearing, Ábrego García’s lawyer Rina Gandhi called the hearing a win but added they were not yet done. “We have not brought Kilmar home,” she told reporters, “but we will be able to question those involved and get information and evidence as required.”
She also accused the administration of acting in bad faith. “This case is about the government unlawfully – and admitting to unlawfully – removing a gentleman from this country, from his home, his family, his children, and taking no actions to fix them as ordered by the supreme court,” Gandhi said.
