US government says judge cannot order return of man sent to El Salvador prison

The US Justice Department told an appeals court that a judge did not have the authority to order the Trump administration to broker the return of a man who was mistakenly sent to a notorious El Salvador prison, and it suspended a government lawyer who admitted in court that the deportation was an error.

The government’s lawyers asked the 4th US Circuit Court of Appeals to pause a Friday ruling by US District Judge Paula Xinis, who ordered the administration to “facilitate and effectuate” Kilmar Abrego Garcia’s return to the US by late on Monday night.

“A judicial order that forces the Executive to engage with a foreign power in a certain way, let alone compel a certain action by a foreign sovereign, is constitutionally intolerable,” they wrote.

The appeals court asked Mr Abrego Garcia’s lawyers to respond to the government’s filing by Sunday afternoon.

Mr Abrego Garcia, a 29-year-old Salvadoran national, was arrested in Maryland and deported last month despite an immigration judge’s 2019 ruling that shielded him from deportation to El Salvador, where he faced likely persecution by local gangs.

His mistaken deportation, described by the White House as an “administrative error”, has outraged many and raised concerns about expelling non-citizens who were granted permission to be in the US.

During a court hearing on Friday at a federal court in Greenbelt, Maryland, Justice Department lawyer Erez Reuveni conceded to Ms Xinis that Mr Abrego Garcia should not have been removed from the US or sent to El Salvador.

Mr Reuveni could not tell the judge upon what authority he was arrested in Maryland.

“I’m also frustrated that I have no answers for you for a lot of these questions,” he said.

But by Saturday, Mr Reuveni had been placed on leave by the Justice Department, a department spokesperson confirmed.

His name was not on Saturday’s filing to the appeals court.

“At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States.

“Any attorney who fails to abide by this direction will face consequences,” Attorney General Pam Bondi said in a statement.

Ms Xinis, who was nominated by President Barack Obama, ruled on Friday that there was no legal basis for Mr Abrego Garcia’s detention and no legal justification for his removal to El Salvador, where he has been held in a prison that observers say is rife with human rights abuses.

Mr Abrego Garcia’s attorney, Simon Sandoval-Moshenberg, said the government has done nothing to get his client back, even after admitting its errors.

“Plenty of tweets. Plenty of White House press conferences. But no actual steps taken with the government of El Salvador to make it right,” he told the judge on Friday.

The White House has cast Mr Abrego Garcia as an MS-13 gang member and repeated that claim after Friday’s hearing.

Mr Abrego Garcia’s lawyers have countered that there is no evidence he was in MS-13.

Mr Abrego Garcia had a permit from DHS to legally work in the US, his lawyer said.

He served as a sheet metal apprentice and was pursuing his journeyman license. His wife is a US citizen.

Mr Abrego Garcia fled El Salvador around 2011 because he and his family were facing threats by local gangs.

In 2019, a US immigration judge granted him protection from deportation to El Salvador.

Government lawyers say they have no control over Mr Abrego Garcia and no authority to arrange for his return “any more than they would have the power to follow a court order commanding them to ‘effectuate’ the end of the war in Ukraine, or a return of the hostages from Gaza”.

“It is an injunction to force a foreign sovereign to send back a foreign terrorist within three days’ time. That is no way to run a government.

“And it has no basis in American law,” they wrote.