The Trump administration declined to provide an update on the Maryland man it mistakenly deported to El Salvador, instead pointing to comments from President Nayib Bukele declining to cooperate on the matter.
It was an unusual filing that came more than an hour after a deadline imposed by a judge who had asked for an update on Kilmar Abrego Garcia’s status and details on what efforts have been made to secure his return from a Salvadoran prison.
“DHS does not have the authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation,” Joseph Mazzara, the acting general counsel for the Department of Homeland Security wrote in a declaration to the court.
The declaration references Monday comments from Bukele saying he would not return Abrego Garcia.
“How could I return him to the United States? I smuggle him to the United States? Of course I’m not going to do it. The question is preposterous,” Bukele said.
The Supreme Court recently ordered the Trump administration to “facilitate” Abrego Garcia’s return. But Attorney General Pam Bondi said during the meeting with Bukele that they were only required to send a plane to return Abrego Garcia if El Salvador agreed.
The filing also raises a new argument – that Abrego Garcia cannot be returned as his gang ties override his 2019 protection from deportation.
Mazzara wrote that even though Abrego Garcia was protected from removal, “he is no longer eligible…because of his membership in MS-13, which is now a designated foreign terrorist organization.”
However, that assertion is based on a sworn declaration from the assistant director of U.S. Immigration and Customs Enforcement (ICE) ‘s removal division and it’s unclear what the legal basis is for the argument. While elsewhere Katz recounts immigration court decisions that review Abrego Garcia’s status in the U.S. and detail his protection from removal, the ICE official does not do so when saying his protections are not valid.
“I understand that he should not have been removed to El Salvador because the immigration judge had also granted Abrego-Garcia withholding of removal to El Salvador. However, I also understand that Abrego Garcia is no longer eligible for withholding of removal because of his membership in MS-13 which is now a designated foreign terrorist organization,” Katz wrote in the Sunday filing.”
The Monday filing comes as the DOJ and attorneys for Abrego Garcia are due in court on Tuesday.
