Judge says Trump administration “failed to comply” to provide information on man mistakenly deported to El Salvador

Washington — A federal judge said Friday that the Trump administration failed to comply with an order for it to provide information she requested about a Maryland man mistakenly deported to El Salvador, including where he is currently located and whether they have taken any steps to facilitate his return to the United States.

U.S. District Judge Paula Xinis said in a written order that the administration “made no meaningful effort to comply” with her directive to file a declaration addressing three questions related to the confinement of Kilmar Abrego Garcia at a Salvadoran supermax prison: his current physical location and custodial status; what stems the administration has taken to facilitate his return to the U.S.; and what steps they will take and when to facilitate his release.

“From this court’s perspective, defendants’ contention that they could not answer these basic questions absent some nonspecific ‘vetting’ that has yet to take place, provides no basis for their lack of compliance,” she wrote.

Xinis directed the administration to file daily declarations providing information in response to her queries. Her written order came after a hearing Friday.  The Justice Department had told her in a filing earlier in the day that it was unable to provide the information she requested about Abrego Garcia and called a Friday morning deadline she set to provide the details “impracticable.”

Xinis had ordered the Trump administration to give her information about Abrego Garcia after the Supreme Court on Thursday reaffirmed her directive for the federal government to “facilitate” his release from Salvadoran custody. 

During the hearing Friday afternoon, Xinis asked Drew Ensign, a Justice Department lawyer, why he could not provide answers to her questions, including on Abrego Garcia’s whereabouts.

“I’m not asking for state secrets,” she said. “I’m asking a very simple question: where is he?”

Ensign repeatedly said he was not given information that he could provide to the court, including Abrego Garica’s custodial status and who had authority over him. Trump administration officials are still evaluating the Supreme Court’s order, he said.

Xinis repeatedly pressed Ensign about where Abrego Garcia is. He noted that his lawyers said Abrego Garcia’s last known location is in El Salvador and acknowledged the government has not put forth information to the contrary.

The judge called the lack of evidence from the Justice Department about Abrego Garcia’s whereabouts “extremely troubling.”

“It behooves this case and how the system of justice works that the following be communicated to your clients: You are the officer of the court. You are the instrument to represent” the government, Xinis said. She said that the record in the case currently shows that despite her directive to take steps to bring Agrego Garcia back to the U.S., “your clients have done nothing to facilitate” his return.

“I’m not sure what to take from the fact that the Supreme Court has spoken quite clearly and yet I can’t get an answer today about what you’ve done, if anything, in the past,” Xinis said.

Ensign told the judge that the federal government “intends to comply with the Supreme Court’s order.” He said that while the administration is prepared to answer her questions about Abrego Garcia’s whereabouts and what actions have been taken to secure his return, they may assert privileges.

Simon Sandoval-Moshenberg, Abrego Garcia’s lawyer, said his lawyers and family have not had contact with Abrego Garcia, and accused the Trump administration of “playing games with their own lawyers.”

“They clearly didn’t comply” with the district court’s order to turn over information about Abrego Garcia, he said.

In the filing to the court ahead of the hearing, Justice Department attorneys told the judge they “are not in a position where they ‘can’ share any information requested by the court. That is the reality.”

“Defendants received the order late in the evening last night. They are reviewing the order and actively evaluating next steps,” they wrote. “It is unreasonable and impracticable for defendants to reveal potential steps before those steps are reviewed, agreed upon, and vetted. Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.”

The Justice Department lawyers said that the judge gave them an “insufficient amount of time” to review the Supreme Court’s order and argued she has not yet provided clarity as to the scope of her initial directive, as the high court told her to do.

Abrego Garcia’s attorneys opposed the government’s request for more time to respond to the judge’s directives and accused the Justice Department of continuing “to delay, obfuscate, and flout court orders, while a man’s life and safety is at risk.”

Abrego Garcia, who lives in Maryland with his wife and children, was arrested and removed to El Salvador last month after Trump administration officials accused him of having ties to the MS-13 gang.  His lawyers said he has no affiliation with MS-13, and has never been charged or convicted of any criminal offenses in the U.S. or El Salvador.

The 29-year-old is being confined at the notorious Salvadoran prison known as CECOT, along with other migrants sent there by the administration as part of an agreement with Salvadoran President Nayib Bukele. Under the deal, the U.S. government is paying the Salvadoran government $6 million to hold U.S. detainees.

But Abrego Garica’s case emerged as a flashpoint in President Trump’s immigration crackdown after a U.S. immigration official acknowledged in a court filing that his removal to El Salvador was an “administrative error” and “oversight.” 

In 2019, an immigration judge granted Abrego Garcia relief known as withholding of removal, which forbids the government from returning him to his home country of El Salvador because he is more likely than not to face persecution from local gangs, according to court records.

While the Trump administration admitted the error in sending Abrego Garcia to El Salvador, it has argued that the district court has no jurisdiction over the Salvadoran government and therefore cannot force it to release Abrego Garcia from its prison. Justice Department lawyers have said that the Salvadoran government has custody of Abrego Garcia, so he cannot be returned to the U.S. unless it releases him.

Abrego Garcia and his wife filed a lawsuit in federal district court in Maryland following his arrest and removal, alleging it violated federal immigration law. They sought an order requiring his return to U.S. custody.

Xinis granted that request last week following a hearing and directed the government to return Abrego Garcia to the U.S. no later than 11:59 p.m. Monday. The dispute ended up before the Supreme Court, and Chief Justice John Roberts put that deadline on hold to allow the high court more time to consider the matter.

Then, on Thursday, the Supreme Court unanimously agreed that the Trump administration had to “facilitate” the release of Abrego Garcia from Salvadoran custody and “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador” — to provide Abrego Garcia with due process of law.

But the Supreme Court also directed the district court to clarify its order, and specifically the directive that the government “effectuate” Abrego Garcia’s return. 

“The district court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” the court said. “For its part, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”