US administration argues judge cannot order return of man mistakenly deported

A US federal judge did not have the authority to order the Trump administration to broker the return of a Maryland man who was mistakenly deported from America to a notorious El Salvador prison, government lawyers argued, as they urged an appeals court to suspend the ruling.

US district judge Paula Xinis ordered the administration to “facilitate and effectuate” Kilmar Abrego Garcia’s return to America by Monday night.

However, US justice department lawyers asked the 4th US circuit court of appeals to immediately pause the judge’s order.

“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.

Dozens of supporters gathered at the federal courthouse in Greenbelt, Maryland, for Friday’s hearing.

A cheer erupted in the courtroom when Judge Xinis ruled in favour of Mr Abrego Garcia, whose wife, US citizen Kilmar Abrego Garcia, was in attendance.

Judge Xinis, who was nominated by former president Barack Obama, said 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 lawyer, 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 doubled down on that claim after Friday’s hearing.

Mr Abrego Garcia’s legal team has said there is no evidence he was in MS-13.

He 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 licence.

Mr Abreho Garcia fled El Salvador in 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”.

They added: “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.”