On Thursday, the Supreme Court ordered the Trump administration to bring back Kilmar Abrego Garcia, the Maryland man it had sent to a notorious Salvadoran mega-prison in what the government has conceded was an “administrative error.” Not one of the justices dissented from that ruling.
The justices sent the case back to the federal trial court. The court asked for information by Friday morning on Abrego Garcia’s whereabouts and what steps the government has taken and will take going forward to facilitate his return. But the government came up empty-handed. Its lawyers said they couldn’t provide that information on time, effectively defying the court’s order.
“Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review,” they wrote in a court filing.
Essentially, the administration is saying it can’t deliver information on Abrego Garcia on time because he is in the custody of a foreign government, and that facilitating his return may require sensitive foreign policy considerations. The US is paying the Salvadoran government to imprison hundreds of deportees, 90 percent of whom have no criminal record.
But immigration law experts said that foreign policy cannot justify the Trump administration’s failure to return Abrego Garcia.
“The idea that somehow this is something other than just picking up the phone and saying, ‘Get this guy back here,’ is absolute poppycock,” said Paul Wickham Schmidt, a retired immigration judge and professor at Georgetown University Law Center. “The idea that this is some sort of sensitive foreign relations is BS.”
This is the second time that the Trump administration has effectively ignored a court order. The first time, it refused to turn around deportation flights headed to El Salvador midair, arguing that US federal courts had no authority outside the US.
On Friday afternoon, the judge ordered the administration to provide daily updates on its plan to bring Abrego Garcia back — as the government slow-walks an order to return a man it, by its own admission, put in grave danger via an “administrative error.”
Where is Kilmar Abrego Garcia?
The Trump administration’s reluctance to provide any information about Abrego Garcia raises serious concerns about his safety.
In 2019, an immigration judge granted Abrego Garcia relief from deportation to El Salvador because he faced the risk of being targeted by gangs. Though the government has accused him of being a member of the MS-13 gang, that was never proven in court.
The prison where he was sent is known as a “legal black hole” and the site of numerous documented human rights abuses. The US has sent more than 200 people there.
“If the government is now refusing to acknowledge that he is somewhere in that country, that’s suspicious,” said César Cuauhtémoc García Hernández, a professor at the Ohio State University Moritz College of Law and author of several books on US immigration enforcement, including Welcome the Wretched. “It’s alarming to see the Justice Department refuse to even acknowledge that he is there or anywhere else on the face of the earth.”
Why the government’s stonewalling should worry everyone
The government’s actions are part of a larger picture of attacks on the rule of law, Schmidt said.
“They’re targeting law firms that represent people against the government,” he said. “They’re defunding legal services. They’re putting people in obscure locations. They’re compromising the immigration courts.”
There’s no telling how far protections for civil liberties could unravel from here, García Hernández said.
A recent Supreme Court ruling doesn’t provide much assurance: The justices found that the Trump administration could not deport people like Abrego Garcia to El Salvador under an obscure, 18th-century law without allowing them the opportunity to challenge their deportations in a US court. But that assumes that those targeted have access to legal counsel, and that’s hard to come by in some of the remote areas where they have been detained.
While the Trump administration might now be targeting unsympathetic figures — people it accuses of ties to gangs — that might give way to broader assaults on individual rights.
“They made it quite clear that they’re not just targeting people who present some kind of risk of bodily harm to those of us who live in the United States,” García Hernández said. “They’re also targeting people who they think present an ideological risk. And there’s no clear endpoint to that logic.”
