In a development 15 minutes before a scheduled hearing in the wrongful deportation case of Kilmar Abrego Garcia, the Trump administration reported they are ready to facilitate Garcia’s presence in the United States.
According to a daily status report submitted to the court, Joseph Mazarra, Acting General Counsel for the Department of Homeland Security (DHS), stated that DHS is open to facilitating Abrego Garcia’s return if he presents at a U.S. port of entry.
However, Mazarra noted that since Abrego Garcia is currently in the custody of El Salvador, DHS lacks the authority to forcibly remove him from a foreign country’s custody.
Mazarra also mentioned that if Abrego Garcia were to present at a port of entry, he would immediately be subject to detention by DHS based on alleged ties to the criminal gang MS-13.
He emphasized that in such a scenario, DHS would take him into custody and could either remove him to a third country or terminate his withholding of removal due to his alleged association with MS-13, a recognized foreign terrorist organization, and subsequently deport him back to El Salvador.
This statement came just a day after an Oval Office meeting where the president of El Salvador conveyed that he would not authorize Abrego Garcia’s return to the United States.
A federal judge overseeing the matter is set to hear from attorneys representing the Trump administration at a court hearing scheduled for Tuesday afternoon.
Kilmar Abrego Garcia has been detained in a mega-prison in El Salvador since March 15, following his deportation there despite having a 2019 court order that prohibited his deportation.
The Trump administration argues that Abrego Garcia is an MS-13 gang member, but has yet to provide substantial evidence to support this claim in court.
He is being held in the notorious CECOT prison, which houses hundreds of alleged migrant gang members, under a deal in which the Trump administration is reportedly paying El Salvador $6 million to accommodate deported migrants as part of an immigration crackdown by President Trump.
During the Oval Office meeting on Monday, Attorney General Pam Bondi indicated that the decision regarding Abrego Garcia’s return ultimately lies with El Salvador.
“If El Salvador … wanted to return him, we would facilitate it,” she stated.
In response to inquiries from the press about Abrego Garcia, President Bukele of El Salvador affirmed, “I don’t have the power to return him to the United States.”
Ahead of the hearing, lawyers for Abrego Garcia submitted a motion arguing that the Trump administration has failed to take any actions to fulfill court orders requiring his release.
They pointed out, “There is no evidence that anyone has requested the release of Abrego Garcia,” emphasizing their contention that the government’s interpretation of the word “facilitate” is overly restrictive.
The administration has claimed in court that “facilitate” simply means removing domestic obstacles to Garcia’s return.
However, Abrego Garcia’s attorneys contended that such a narrow interpretation would effectively nullify the Supreme Court’s order for the government to facilitate his release.
To render the Supreme Court’s order meaningful, they argue, the government should at least be required to request Abrego Garcia’s release.
Thus far, such a request has not been made by the government, as asserted in their legal motion.
Following U.S. District Judge Paula Xinis’s order to “facilitate and effectuate” Abrego Garcia’s return, the Supreme Court unanimously ruled that she properly required the government to facilitate his release from custody in El Salvador.
Moreover, the Court mandated that Garcia’s case must be handled as it would have been had he not been wrongfully deported to El Salvador.
However, the intended scope of the term “effectuate” in the District Court’s order has been deemed unclear and possibly overstepping the Court’s authority.
The Supreme Court suggested that the District Court clarify its directive with adequate consideration of the executive branch’s privileges in foreign affairs.
In an effort to align with these recommendations, Judge Xinis subsequently amended her ruling, omitting the term “effectuate” from the order, leaving only the requirement to “facilitate” Garcia’s return.
In an interview with ABC News, Benjamin Osorio, an attorney for Abrego Garcia, expressed hope that the upcoming hearing would prompt the government to adhere to the Supreme Court’s directive concerning Garcia’s release.
He articulated, “What we’re asking [of Trump] is exactly what the Supreme Court told him.”
Osorio highlighted his previous collaborations with DHS to facilitate the return of other clients deported who successfully won their cases at circuit court levels or the Supreme Court, underscoring that they are not seeking illegal actions but rather compliance with existing laws.
Reflecting on the current situation, Osorio likened it to a situation where parties are shifting accountability, stating, “It feels a little bit like the Spider-Man meme where everybody’s pointing at everybody else.”
He added, “But at the same time, we are renting space from the Salvadorans. We are paying them to house these individuals, so we could stop payment and allow them to be returned to us.”
When asked about his confidence regarding Abrego Garcia’s return, Osorio expressed concerns yet remained hopeful.
“I’m worried about the rule of law, I’m worried about our Constitution, I’m worrying about due process,” he admitted.
At this juncture, he stated he is cautiously optimistic about the outcome of the federal court hearing.
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