President Trump is staring at a judge-imposed Monday deadline to fly home an illegal immigrant gang suspect whom the administration deported last month and whom the White House has insisted it would never bring back.
Kilmar Abrego-Garcia’s case has quickly turned into a major showdown between Mr. Trump and Judge Paula Xinis, who on Friday said the man’s arrest was unconstitutional and his March 15 deportation unlawful.
The White House admits Mr. Abrego-Garcia was wrongly sent to a notorious terrorist prison in El Salvador but called it a “clerical error.” Mr. Trump’s spokeswoman has labeled him a dangerous member of the MS-13 gang, which has been declared a terrorist organization, and she said he “will not be returning to our country.”
That was before Judge Xinis set the Monday 11:59 p.m. deadline to fly him back.
“This was an illegal act,” the judge said during a lengthy hearing where she excoriated the administration for its handling of the case.
In a written opinion Sunday, she said Mr. Abrego-Garcia was deported “without notice, legal justification or due process.”
The Justice Department has appealed her ruling and asked the 4th U.S. Circuit Court of Appeals to step in and delay the deadline to give the sides a further chance to argue the case.
“Kilmar Armando Abrego Garcia is presently being held in El Salvador, by the El Salvadoran government. The United States does not have control over Abrego Garcia,” August Flentje, the government’s new attorney on the case, told the appeals court this weekend.
Bringing back Mr. Abrego-Garcia would be a serious embarrassment for the White House, as press secretary Karoline Leavitt has ruled out his return.
He was deported as part of the three planeloads of migrants shipped to El Salvador on March 15, most of them Venezuelans deported after Mr. Trump invoked the Alien Enemies Act.
That circumvented the usual immigration system to speed deportations of Venezuelans the administration says are members of Tren de Aragua, another gang the government has declared a terrorist organization.
Another federal judge is pondering whether those deportations violated his orders and will decide whether those migrants should be brought back.
Mr. Abrego-Garcia was on one of the three planes but was deported under the regular immigration system, not the Alien Enemies Act. He had a “final order of removal,” a formal deportation order.
The problem is that the immigration judge who issued the order in 2019 said the one place he couldn’t be sent was El Salvador, his home country, because he faced persecution or torture at the hands of the government.
He ended up on the plane anyway.
Mr. Abrego-Garcia has denied being a member of MS-13.
An immigration judge in 2019 found it likely he was a member based on a Prince George’s County Police Department report from a confidential source that identified him by his gang rank and gang nickname. Deportation authorities arrested him in 2019 in the company of known MS-13 figures, the immigration judge said.
She denied him bond at the time, saying he had missed several court appearances for traffic offenses and didn’t seem to show respect for court orders.
Ms. Leavitt hinted at other offenses, though she provided no details. Judge Xinis said no proof of crimes or gang membership had been presented in her courtroom.
“That’s just chatter, in my view. I haven’t been given any evidence,” she said. “In a court of law, when someone is accused of membership in such a violent and predatory organization, it comes in the form of an indictment, a complaint, a criminal proceeding, that then has a robust process so we can assess the facts.”
She demanded to know the authority for Mr. Abrego-Garcia’s arrest earlier this year.
Erez Reuveni, the government’s initial attorney in the case, told the judge he didn’t know and blamed the Department of Homeland Security for withholding information.
“I am also frustrated that I have no answers for you,” he said.
“That means from the moment he was seized, this was unconstitutional,” the judge said.
Mr. Reuveni told the judge he had advised the government to bring back Mr. Abrego-Garcia, but he couldn’t explain why Homeland Security resisted.
“I very much appreciate your candor to the court. Good clients listen to their lawyers,” Judge Xinis said.
Mr. Reuveni’s chief argument to the judge was that Mr. Abrego-Garcia is beyond America’s reach, given that he is an El Salvador citizen now in a Salvadoran prison.
Judge Xinis said the U.S. is paying El Salvador to hold him and the U.S. seems to be working closely with Salvadoran officials on the March 15 deportations.
She said accepting the government’s argument would allow the “unfettered relinquishment of any person regardless of immigration status or citizenship to foreign prisons.”
In her written opinion Sunday, she repeatedly cited Mr. Reuveni’s concessions as evidence of the government’s mishandling of the case.
Mr. Reuveni’s actions earned the ire of the Justice Department, which booted him from the case and put him on administrative leave.
“He shouldn’t have taken the case. He shouldn’t have argued it if that is what he was going to do,” Attorney General Pam Bondi said on “Fox News Sunday.”
She defended the claim that Mr. Abrego-Garcia was a member of MS-13, saying U.S. Immigration and Customs Enforcement made the determination.
“I firmly believe in the work they are doing, and we are going to make America safe again,” Ms. Bondi said.
