Following up on my time line on the Abrego Garcia case through April 6:
On April 10 the Supreme Court unanimously rules that District Court Judge Xinis can order the government to return Abrego Garcia to the United States. The order requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The court ruled that the scope of the term “effectuate” used by Xinis is unclear, and may exceed the District Court’s authority. The District Court should clarify its directive. The Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.
In 2012, the ICE had issued Policy Directive 11061.1, titled “Facilitating the Return to the United States of Certain Lawfully Removed Aliens.” The directive does not describe the scope of “facilitating.” It does refer to return travel, which is the basis for the government to say that its obligations for facilitating are only to arrange for return travel..
During April 11 – 14 Judge Xinis amends her order, instructing the administration to “take all available steps to facilitate” Abrego Garcia’s return and demands daily updates on their efforts. The government stalls, submits de minimis reports, some late, and misrepresents the Supreme Court’s ruling, saying that it has no legal power to acquire another government to return a prisoner under its own control.
On April 14 in a meeting between Presidents Trump and Bukele, Bukele told reporters it was “absurd” to ask if he would return Abrego Garcia. Bukele said, “Are you suggesting I smuggle a terrorist into the United States? How can I return him to the United States, like I smuggle him into the United States? Of course, I’m not going to do it.”
On April 15 Judge Xinis describes and severely criticizes the government’s failure to respond to her and the Supreme Court’s rulings and orders “expedited discovery.” By April 21, the government must respond to up to 15 written questions and provide up to 15 relevant documents. Depositions of four named officials must be completed by April 23. Plaintiffs can request to interview up to two more people if needed. Warning the government, she wrote: “Plaintiffs’ request for expedited discovery focuses on securing compliance with this Court’s amended order at ECF No. 51 and other related directives, and in the face of ongoing refusal to comply, to assist the Court in determining whether contempt proceedings are warranted….Should Defendants fail or refuse to engage in the above-described discovery in good faith, Plaintiffs are free to seek separate sanctions on an expedited basis.”
On April 17, ruling on an appeal by the government to Xinis’ discovery order, Appeals Court Judge Harvie Wilkinson blasts the government: “It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
On April 18 DHS issues a report saying that Abrego Garcia is a suspected trafficker, based on a incident in 2022: “Kilmar Abrego Garcia is a MS-13 gang member, illegal alien from El Salvador, and suspected human trafficker. The facts reveal he was pulled over with eight individuals in a car on an admitted three-day journey from Texas to Maryland with no luggage…The facts speak for themselves, and they reek of human trafficking. The media’s sympathetic narrative about this criminal illegal gang member has completely fallen apart. We hear far too much about the gang members and criminals’ false sob stories and not enough about their victims.”
On April 24 Border Czar Tom Homan spoke to reporters: “We are not acting in bad faith. We removed a demonstrable public safety threat, a wife beater, a designated terrorist from the United States. He’s home, a citizen of El Salvador, who had two orders of removal by two separate immigration judges in the past. If he actually gets back, he will be detained again…I don’t think any court can order another nation, a sovereign nation, to take a citizen of its country and return him. I think he’s got plenty of due process (some paraphrased).
On April 24 Judge Xinis, after accusing the government on April 23 of “willful and bad faith refusal to comply with discovery obligations,” orders a stay until April 30 given confidential discussions between the plaintiffs and the government.