By Steve Thompson · The Washington Post (c) 2025
The Trump administration is appealing a federal judge’s order to facilitate the return of a Maryland man illegally deported to a notorious megaprison in El Salvador, a move that could send the case back to the Supreme Court for a second time.
In a request to pause directives from U.S. District Judge Paula Xinis pending the appeal, Justice Department lawyers argue that the judge’s orders have “flouted” a mandate from the high court last week to act with deference toward the administration in the case of Kilmar Abrego García when it comes to foreign affairs.
“The federal courts do not have the authority to press-gang the President or his agents into taking any particular act of diplomacy,” the Justice Department said in a Wednesdaycourt filing that was posted online Thursday.
The request filed to the U.S. Court of Appeals for the 4th Circuit in Richmondhinges largely on the meaning of the word “facilitate.” Xinis and the Justice Department have disagreed on the definition in a case with far-reaching implications surrounding the Trump administration’s argument that, once it illegally removes someone to a foreign country, that person is beyond the reach of the U.S. federal court system for any recourse.
In this case, the Trump administration alleges that Abrego García, 29, is a member of the MS-13 transnational gang, which it has designated a foreign terrorist organization – an assertion administration officials have aggressively pushed in social media and other venues in recent days. Abrego García’s family and lawyers deny this, and he appears to have no criminal record in either the U.S. or El Salvador.
Abrego García is married to a U.S. citizen and had lived in the United States since fleeing El Salvador as a teenager after Barrio 18 gang members there attempted to extort his family and, then, recruit him and an older brother into their ranks. He was sent back despite an immigration judge’s order prohibiting his deportation back to El Salvador – a humanitarian protection called “withholding of removal” – in a ruling based on his fears of being persecuted by that gang.
President Donald Trump said on Monday that he is open to sending U.S. citizens to a Salvadoran prison if they have committed violent criminal acts. He did not say whether that would involve legal due process for the accused, a treatment not afforded to Abrego García before U.S. officials flew him to El Salvador last month along with more than 200 other men in defiance of another federal judge’s order.
The Supreme Court’s order largely affirmed an April 4 order by Xinis directing Trump administration officials to “facilitate and effectuate” Abrego García’s return.
The administration has claimed the Supreme Court’s ruling as a victory, focusing on a line in the 9-0 decision thatinstructs the federal court in Maryland to act with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
In light ofthat deference, the Supreme Court expressed concern about Xinis’s instruction to “effectuate” Abrego García’s return. But the high court said Xinis’s order “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.”
Trump administration officials say the Supreme Court’s decision requires only that they allow Abrego García to return to the U.S. should he be released by the government of El Salvador, not that they take steps to encourage his release from that country’s Terrorism Confinement Center, a megaprison infamous for its harsh conditions where as many as 70 people are forced to share a cell.
“In the setting of a case involving a citizen of a foreign sovereign, who is a member of a foreign terrorist organization, held in the domestic custody of that sovereign, there is no question that the Executive’s foreign affairs powers are at their apex,” the Justice Department’s filing on Wednesday said.
In the wake of the Supreme Court’s decision, Xinis has tried to force the Trump administration to provide information about its efforts, or lack thereof, to facilitate Abrego García’s release. In an order on Tuesday, she said she’ll require administration officials to produce records and submit to questioning under oath.
In response to Xinis’s order, Abrego García’s lawyers have asked for depositions next week from: Michael G. Kozak, a senior State Department official; Robert L. Cerna II, an acting field office director at U.S. Immigration and Customs Enforcement; Joseph N. Mazzara, acting general counsel of the U.S. Department of Homeland Security; and Evan C. Katz, an assistant director at ICE.
The Justice Department argued in its filing Wednesday that the demands for information, known as discovery, improperly intrude on the president’s powers and amount to a “fishing expedition.”
“If there is ever a situation where the federal courts should be especially careful about intruding on the exclusive foreign relations powers of the President, it should be in the context of facilitating the return of a member of a foreign terrorist organization presently being held in another land,” the filing said.
Abrego García’s lawyers did not immediately comment Thursday about the appeal, but in a statement Wednesday said they would “continue to fight for our client’s safe return and to ensure his constitutional rights are fully restored.” They also had yet to respond in court to the administration’s latest arguments. But in a filing last week they said administration officials are defying both Xinis’s and the Supreme Court’s orders and called for contempt proceedings against the officials, a request Xinis said Tuesday she would consider.
—
Aaron Schaffer contributed to this report.