The Trump administration on Monday misrepresented a US supreme court decision that compelled it to return a man wrongly deported to El Salvador, using tortured readings of the order to justify taking no actions to secure his release.
The supreme court last week unanimously ordered the administration to “facilitate” the release of Kilmar Ábrego García, who was supposed to have been protected from deportation to El Salvador regardless of whether he was a member of the MS-13 gang.
But at an Oval Office meeting between Trump and El Salvador’s president, Nayib Bukele, Trump deferred to officials who gave extraordinary readings of the supreme court order and claimed the US was powerless to return Ábrego García to US soil.
“The ruling solely stated that if this individual at El Salvador’s sole discretion was sent back to our country, we could deport him a second time,” said Trump’s policy chief, Stephen Miller, about an order that, in fact, upheld a lower court’s directive to return Ábrego García.
Miller’s remarks went beyond the tortured reading offered by the US attorney general, Pam Bondi, who also characterized the supreme court order as only requiring the administration to provide transportation to Ábrego García if released by El Salvador.
“That’s up to El Salvador if they want to return him. That’s up to them,” Bondi said. “The supreme court ruled that if El Salvador wants to return him, we would ‘facilitate’ it, meaning provide a plane.”
The remarks at the Oval Office meeting marked an escalation in the Trump administration’s attempts to claim uncertainty with court orders to avoid having to take actions it dislikes. In Ábrego García’s case, officials appeared to manufacture uncertainty in particularly blatant fashion.
And the fact that the US is paying El Salvador to detain deportees it sends to the notorious Cecot prison undercut the notion that the administration lacked the power to return Ábrego García into US custody.
The case started when Ábrego García was detained by police in 2019 in Maryland, outside a Home Depot, with several other men, and asked about a murder. He denied knowledge of a crime and repeatedly denied that he was part of a gang.
Ábrego García was subsequently put in immigration proceedings, where officials argued they believed he was part of the MS-13 gang in New York based on his Chicago Bulls gear and on the word of a confidential informant.
The case went before a US immigration judge, who suggested that Ábrego García could be a member of MS-13 and agreed to a deportation order but shielded him from being sent to El Salvador because he was likely to face persecution there by a local gang.
The Trump administration did not appeal against that decision, and Immigration and Customs Enforcement has since said in a court filing that Ábrego García’s deportation to El Salvador was an “administrative error”. The supreme court also called his removal illegal.
In earlier remarks to reporters on Monday morning, Miller expressly demonstrated he knew the administration had made a mistake because the immigration judge had issued a so-called withholding order, which meant he could not be deported to El Salvador.
“When you have a withholding order, to be clear, that is not ‘pause your deportation’. In other words, in the worst-case scenario, it means you get deported to another country,” Miller said.
That concession evaporated hours later when he joined Trump, Bukele and a dozen senior officials in the Oval Office and suggested that bringing back Ábrego García to the US would be tantamount to kidnapping a citizen of El Salvador.
Miller appeared to be suggesting that the US could not force the actions of El Salvador, a sovereign nation. But he then said the supreme court said neither the president nor the secretary of state could forcibly retrieve a citizen of El Salvador from El Salvador – which the order did not say.
