Americans are waiting to see whether their country will correct what the Justice Department has called a mistake – a deportation that the Supreme Court has also called illegal. Prospects dimmed Monday as the United States and El Salvador, whose president visited the White House, signaled they wouldn’t work to correct the error and bring Kilmar Abrego Garcia, who is now behind bars in an Salvadoran prison, back to the U.S.
The deportation case of Mr. Abrego Garcia was originally focused on correcting what Department of Justice lawyers conceded was a removal due to an “administrative error.” But it is moving toward a showdown over the extent to which the U.S. president can refuse to comply with judicial orders in the name of foreign policy, as both President Donald Trump’s government and Salvadoran President Nayib Bukele said Monday that they can’t be forced to send Mr. Abrego Garcia back to the U.S.
The U.S. government deported Mr. Abrego Garcia, a Salvadoran living in Maryland, back to El Salvador last month. Mr. Abrego Garcia, who the U.S. alleges is a member of the MS-13 gang, had previously received legal protection against deportation to El Salvador, where he’s now detained.
Why We Wrote This
The leaders of the United States and El Salvador say they can’t be forced to return a man deported in error from the U.S., setting up a struggle between the executive branch and the courts.
Two words are stirring debate. The Supreme Court last week ruled that the government must “facilitate” the release of Mr. Abrego Garcia from a Salvadoran prison. Yet it also sought clarity on a lower court order about how the government should “effectuate” his return, with deference to the executive branch in foreign affairs.
Secretary of State Marco Rubio said Monday in an Oval Office meeting between Mr. Trump and Mr. Bukele that foreign policy “is conducted by the president of the United States, not by a court.” Attorney General Pam Bondi suggested in the meeting that the U.S. could “provide a plane” for Mr. Abrego Garcia if the Salvadoran government wanted to return him. Yet El Salvador will not return the deportee, said President Bukele in Washington, citing his own country’s crackdown on crime.
“Of course I’m not going to do it,” Mr. Bukele said. “How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.” The White House has said it is paying El Salvador some $6 million to hold detainees.
Abrego Garcia Family/Reuters
The allies’ out-of-our-hands approach has raised urgent questions about legal recourse for people wrongfully removed from the U.S.
American immigration officials have wrongly detained and deported immigrants and U.S. citizens before, researchers say. Yet how past protocols apply to this case remains unclear – as Mr. Abrego Garcia is not just in a foreign country but also in a foreign prison.
Those facts point to two key issues, says Cristina Rodríguez, professor at Yale Law School. First, “whether a court can order the government to make every effort to return the person who they erroneously removed,” she says.
The harder question?
Whether there is anything a court can require of the government, she says, “when returning someone will entail getting a foreign government to comply.”
Why this case matters
The Abrego Garcia case is the latest confrontation between executive and judicial authority in the second Trump term.
The unauthorized immigrant had his asylum application denied in 2019, due to missing the one-year filing deadline. However, an immigration court judge granted him protection from deportation to El Salvador, as Justice Department lawyers have recognized, due to fear of persecution by a gang called Barrio 18.
The government continues to claim he is a member of MS-13, which his counsel denies. The Department of Homeland Security has also claimed, without producing evidence, that he has been involved in human trafficking.
U.S. District Court for the District of Maryland/AP
An attorney for Mr. Abrego Garcia suggested Monday that a contempt order might be necessary to compel the government to return his client.
In recent court filings, the government has maintained that Mr. Abrego Garcia is alive and detained at El Salvador’s Terrorism Confinement Center, but also that the order to “facilitate” his return means allowing him to reenter the U.S. – not more.
“The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way,” Justice Department lawyers wrote.
Several immigration and legal scholars disagree with the government’s rationale.
Given the government’s disregard, “I do think we’ve likely entered into the constitutional crisis,” says Jennifer Koh, co-director of the Nootbaar Institute for Law, Religion, and Ethics at Pepperdine University.
“If the government can do this to Mr. Abrego Garcia, … then it can really happen to anyone,” she says. (As one government watchdog found, between fiscal years 2015 and 2020, Immigration and Customs Enforcement (ICE) deported 70 potential U.S. citizens.)
The Supreme Court’s order, while siding largely with the deportee, “could have been far more clear,” says Ms. Koh, and “seemed to grant unnecessary permission to the government to take the position that it has.”
Even if the U.S. did bring Mr. Abrego Garcia back, it’s likely not “case closed,” says Simon Hankinson, senior research fellow at The Heritage Foundation’s Border Security and Immigration Center. The U.S. could try to remove him to another country, he says. After 23 years as a foreign service officer at the State Department, Mr. Hankinson says this is the first he’s aware of an attempt to “compel our government to bring back someone who wasn’t supposed to be here in the first place.” That’s because “Country A cannot force Country B to hand over one of its citizens,” absent an agreement, he says.
Others point to precedent for such agreements. “The federal government regularly extradites criminals from foreign countries who are attempting to evade punishment by the U.S.,” says Jacqueline Stevens, founding director of the Deportation Research Clinic at Northwestern University. So it seems difficult to think a court would find an argument of impossibility persuasive, she says.
White House adviser Stephen Miller, an influential immigration hawk, also mentioned extraditions Monday, with a different argument.
“It’s up to El Salvador and to the government and the people of El Salvador what the fate of their own citizens is,” Mr. Miller told Fox News. “We can’t extradite citizens of foreign countries to our country over the objection of those countries.” Mr. Miller also claimed on Fox that the U.S. did not deport Mr. Abrego Garcia by mistake.
Mr. Miller argues that terrorists aren’t entitled to protections from deportation. The Trump administration designated MS-13, which began in the U.S., as a foreign terrorist organization this year.
Precedent for deportation returns
The U.S. has allowed for the return of wrongfully deported people previously, including a man from El Salvador deported in 2019, despite protection from deportation and a pending asylum application.
Official procedures were referenced in the Supreme Court decision from Thursday. A statement by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, notes the government’s “own well-established policy” by citing a document from 2012.
That ICE policy talks about paroling in deported immigrants at ports of entry, and that facilitating a return doesn’t necessarily involve funding an individual’s commercial flight back to the U.S. However, the document is about letting back in “lawfully removed aliens.” Mr. Abrego Garcia’s deportation was deemed unlawful, and while imprisoned, he can’t currently arrive at a U.S. port of entry.
Neither ICE nor the Department of Homeland Security responded to requests to clarify protocols for returning wrongfully deported people.
As Mr. Abrego Garcia’s case continues, so do deportations to El Salvador, according to the State Department. Secretary of State Rubio wrote on the social platform X that, on Saturday night, “another 10 criminals” from MS-13 and Tren de Aragua had arrived.
Sarah Matusek reported from Denver and Caitlin Babcock from Washington.
