(BALTIMORE) — A federal judge is defending her decision to order the Trump administration to facilitate the return of Kilmar Abrego Garcia from a notorious El Salvador prison by Monday and has denied the government’s request to stay her order while it appeals her decision.
In a new court filing, U.S. District Judge Paula Xinis called the government’s decision to send the 29-year-old Abrego Garcia to El Salvador’s CECOT prison a “grievous error.”
A U.S. Immigration and Customs Enforcement (ICE) official admitted in a sworn declaration on March 31 that an “administrative error” led to Abrego Garcia, who is married to a U.S. citizen, being sent to El Salvador despite a 2019 court order barring the government from deporting him to his home country.
“As Defendants acknowledge, they had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador – let alone deliver him into one of the most dangerous prisons in the Western Hemisphere,” Xinis wrote in the court document, filed Sunday.
In 2019, an immigration judge issued a withholding of removal order for Abrego Garcia, prohibiting the government from sending him back to his home country because he feared persecution there from gangs.
Judge Xinis argued that Abrego Garcia’s placement in the El Salvadorian mega-jail despite the “risk of harm shocks the conscience.”
“Defendants have forcibly put him in a facility that intentionally mixes rival gang members without any regard for protecting the detainees from ‘harm at the hands of the gangs,'” the judge wrote.
“Defendants have claimed – without any evidence – that Abrego Garcia is a member of MS-13 and then housed him among the chief rival gang, Barrio 18. Not to mention that Barrio 18 is the very gang whose years-long persecution of Abrego Garcia resulted in his withholding from removal to El Salvador,” Xinis further wrote.
Abrego Garcia’s attorneys have maintained that he is neither a member of nor has any affiliation with Tren de Aragua, MS-13, or any other criminal or street gang. They also argue that the U.S. government “has never produced an iota of evidence to support this unfounded accusation.”
In Sunday’s filing, Xinis wrote that the government has not produced any evidence to suggest they cannot secure Abrego Garcia’s return and said that the court retains jurisdiction in the case because Abrego Garcia challenges his removal to El Salvador, “not the fact of confinement.”
“They do indeed cling to the stunning proposition that they can forcibly remove any person – migrant and U.S. citizen alike – to prisons outside the United States, and then baldly assert they have no way to effectuate return because they are no longer the ‘custodian,’ and the Court thus lacks jurisdiction,” Xinis wrote.
“As a practical matter, the facts say otherwise,” Xinis added.
Citing Department of Homeland Security Secretary Kristi Noem’s own words from a video posted March 26 on X that the CECOT prison is “one of the tools in our toolkits that we will use,” Xinis said the record reflects that the defendants have “outsourced part of the U.S. prison system.”
“Just as in any other contract facility, Defendants can and do maintain the power to secure and transport their detainees, Abrego Garcia included,” Xinis wrote.
Xinis also included some of the arguments made by Erez Reuveni, the U.S. Department of Justice attorney who argued on behalf of the government on Friday in a lawsuit brought by Garcia’s family. Reuveni was placed on administrative leave by the DOJ over what the department alleged was a “failure to zealously advocate” for the government’s interests during the hearing.
“As their counsel suggested at the hearing, this is not about Defendants’ inability to return Abrego Garcia, but their lack of desire,” Xinis wrote.
During Friday’s hearing, Xinis asked Reuveni, “Can we talk about, then, just very practically, why can’t the United States get Mr. Abrego Garcia back?”
“Your Honor, I will say, for the Court’s awareness, that when this case landed on my desk, the first thing I did was ask my clients that very question. I’ve not received, to date, an answer that I find satisfactory,” Reuveni responded.
Xinis claimed in Sunday’s filing that, while the legal basis for the Trump administration’s decision to deport over 200 alleged gang members to El Salvador “remains disturbingly unclear,” there is no legal grounds for Abrego Garcia to be among them.
“Nor does any evidence suggest that Abrego Garcia is being held in CECOT at the behest of Salvadoran authorities to answer for crimes in that country. Rather, his detention appears wholly lawless,” Xinis wrote.
On Saturday, the Trump administration filed an emergency motion to stay Judge Xinis’ order. The appellate court has given Abrego Garcia’s legal team until 2 p.m. Sunday to respond.
In March, Abrego Garcia was stopped by ICE officers who “informed him that his immigration status had changed,” according to his attorneys. After being detained over alleged gang affiliations, he was transferred to a detention center in Texas. He was then sent to El Salvador on March 15, according to a complaint his lawyers filed last month in a U.S. District Court in Maryland.
During a news conference on Friday, Abrego Garcia’s wife, Vasquez Sura, demanded that the Trump administration return her husband to the United States.
“If I had all the money in the world, I would spend it all just to buy one thing: a phone call to hear Kilmar’s voice again,” Vasquez Sura said. “Kilmar, if you can hear me, I miss you so much, and I’m doing the best to fight for you and our children.”
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